text:
    A93A2396.
    A93A2399.
    A93A2601.
    DARDEN v. THE STATE. JONES v. THE STATE. HOLLOMAN v. THE STATE.
    (441 SE2d 816)
   Pope, Chief Judge.

Defendants were all convicted of distributing cocaine, and defendant Holloman was also convicted on a separate charge of possession with intent to distribute. Following denial of their motions for new trial, defendants appeal.

Three officers were working undercover in an area of Rockmart known as a center for crack cocaine dealing. As they turned their truck into Second Street and slowed down, three men approached. These men were later identified as Darden, Jones and Lee, a co-defendant who was acquitted and is not involved in this appeal. One of the officers asked the men if they knew where he could get a $20 hit of crack, and Darden responded that they could get it but would have to wait for their “man” to get there. A white and red Ford LTD then entered the area. Jones said, “Here comes our man now,” and told the undercover officers to drive around the block, which they did. When they returned, the LTD was parked at the end of the street and Lee was talking with the driver, subsequently identified as Holloman. Jones and Darden stood by the officers’ truck. Lee then left the LTD and Jones walked toward him. Lee handed something to Jones, and then Jones walked back to the truck where he handed a small green packet of crack cocaine to Darden. Darden gave the packet to Officer Michael Daniel, and then all four suspects were arrested. Officer Joel McSwain testified that when he went to arrest Holloman in his LTD, Holloman said “It’s not mine, I’m just holding it for somebody.” Holloman then told McSwain that “it” was between the front seats, where McSwain found a plastic baggie containing 17 more hits of crack.

1. All three defendants argue that the trial court should have excluded the hit of crack cocaine in the small green plastic bag which defendants sold to the officers. Officer Daniel testified that Darden handed the crack to him. Yet Officer Keith Barber, the officer in charge of collecting the physical evidence, testified that his notation on the evidence bag indicates that Daniel told him at the time that he got the crack from Jones. Officer Daniel also testified that he gave the packet to Officer Barber at the scene, while Officer Barber testified that he received it from Officer Daniel back at the station. Moreover, Officer Barber placed the packet in an evidence bag containing evidence from a different officer, Officer Jameson, rather than a bag containing other evidence from Officer Daniel. Based on these discrepancies, defendants assert the State failed to establish the chain of custody, so the evidence should have been excluded. “ ‘The burden the state must carry to gain admission of evidence such as this is to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution.’ ” (Citation omitted.) Johnson v. State, 207 Ga. App. 121, 122 (427 SE2d 93) (1993). Here, the State showed that Darden handed the packet of crack to Officer Daniel, that Officer Daniel turned the packet over to Officer Barber, and that Officer Barber then took the packet to the crime lab for analysis. There is no evidence suggesting substitution of or tampering with the evidence. Thus, the State met its burden for admission of the evidence in this case, and the minor discrepancies pointed to by defendants go only to its weight. See Anderson v. State, 247 Ga. 397 (2) (276 SE2d 603) .(1981); Richards v. State, 189 Ga. App. 146 (1) (375 SE2d 278) (1988); Jackson v. State, 188 Ga. App. 834 (374 SE2d 777) (1988).

2. All three defendants also contend the trial court erred in denying their motions for mistrial based on the State’s improper closing argument. Although defendants argue here that several portions of the State’s argument were improper, they moved for mistrial only on the grounds of the State’s allegedly improper references to the pervasive drug problem in our society. Such references are not improper. See Philmore v. State, 263 Ga. 67 (3) (428 SE2d 329) (1993). In any case, the trial court sustained defendants’ objections to these references, rebuked State’s counsel and gave the curative instructions requested by defendants. Accordingly, the trial court’s denial of the motion for mistrial was not error. See OCGA § 17-8-75.

Decided March 9, 1994.

Munday & Gammage, John S. Husser, for Darden.

Gammon & Anderson, Brad J. McFall, for Jones.

Daniel B. Simon III, for Holloman.

George C. Turner, Jr., District Attorney, Blanchette C. Holland, Assistant District Attorney, for appellee.

3. Defendant Holloman challenges the sufficiency of the evidence linking him to the sale of the cocaine to the officers. The evidence of Holloman’s involvement in the sale was sufficient to exclude all other reasonable hypotheses and enable a jury to find him guilty of selling cocaine beyond a reasonable doubt. See OCGA § 24-4-6.

4. Lastly, defendant Holloman argues that the trial court erred in dismissing a juror and replacing her with an alternate during the course of the trial, despite its conclusion that she had not actually done anything improper. The record shows that during a break, the juror was seen sitting and talking with defendants Darden and Jones. Upon questioning by the court, the juror said she had known Darden and Jones all their lives. She said she raised her hand in response to a voir dire question about knowing the defendants, but the State did not see her hand raised. Under OCGA § 15-12-172, the trial court has discretion to discharge a juror and replace him or her with an alternate at any time, and we will not reverse as long as the court’s exercise of discretion has a sound legal basis. See Miller v. State, 261 Ga. 679 (6) (410 SE2d 101) (1991); Payne v. State, 195 Ga. App. 523 (2) (394 SE2d 781) (1990). Contrary to defendant Holloman’s contention, improper conduct on the part of the juror is not required. In Payne, the juror in question had previously been represented by defense counsel. The juror raised his hand when asked about such during voir dire, but the prosecutor did not see it. Under these circumstances, we held that the trial court did not abuse its discretion in replacing the juror with an alternate when the prosecutor moved to do so after the close of evidence. Id. at 524. As the circumstances here are almost identical to those in Payne, we also hold that the trial court had a sound legal basis for its discharge of the juror in this case and did not abuse its discretion.

Judgments affirmed.

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


source: Caselaw Access Project

author: Pope, Chief Judge.

license: Public Domain

text:
    A93A2504.
    DUITSMAN v. THE STATE.
    (441 SE2d 888)
   Pope, Chief Judge.

Defendant Randy Neil Duitsman was found guilty by a jury of two counts of aggravated assault on a law officer and two counts of felony obstruction of a law officer. He appeals from the conviction and sentences entered by the trial court on the jury’s verdicts.

1. In related enumerations, defendant raises the general grounds as to each conviction. “On appeal from a criminal conviction, the evidence is construed in the light most favorable to the verdict of guilt, and the presumption of innocence no longer applies. An appellate court does not weigh the evidence or judge the credibility of the witnesses but only determines whether the adjudication of guilt is supported by sufficient competent evidence. [Cit.]” Belins v. State, 210 Ga. App. 259 (1) (435 SE2d 675) (1993).

Viewed in the light to uphold the verdict, the evidence shows that defendant lived with his wife and two children in an old bus next to his brother’s trailer. Defendant’s sister-in-law summoned the police to break up a domestic disturbance between defendant and his wife. Captain Lowe and Deputy Fortner of the Lumpkin County Sheriff’s Department responded. Deputy Fortner was in uniform, and the officers arrived in a marked sheriff’s vehicle. As the officers approached, defendant was exiting his brother’s trailer, “manhandling the wife . . . and children, pushing them towards the bus.” A child cried out “He’s got a gun!” Deputy Fortner ordered defendant to halt and said that they needed to speak with him. Defendant twice refused Fortner’s command to halt and then entered the bus. When the officers asked defendant to come out and talk to them, he refused to come out, shouting, “If you want me, you’re going to have to come in and get me!” Captain Lowe shined a flashlight into the bus and saw defendant pointing a pistol at Deputy Fortner. Fortner also saw defendant point the pistol. Defendant then swung around and pointed the gun at Captain Lowe. Deputy Fortner kicked in the folding door of the bus and tackled defendant. They scuffled, during which time defendant kicked Captain Lowe in the hand, causing a severe sprain. Defendant continued to resist until he was forcibly subdued and handcuffed. This version of events was corroborated in a statement given at the scene by defendant’s 12-year-old niece, an eyewitness.

Aggravated assault on a peace officer in violation of OCGA § 16-5-21 (c) requires proof that the officer was, at the time of the assault, engaged in the performance of his official duties. See Bundren v. State, 247 Ga. 180, 181 (2) (274 SE2d 455) (1981). Likewise, felony obstruction of a law enforcement officer in violation of OCGA § 16-10-24 (b) requires a showing that the officer was acting “in the lawful discharge of his official duties.” Defendant argues that his warrantless arrest was without probable cause such that the officers were not acting in the lawful discharge of their official duties. See Wagner v. State, 206 Ga. App. 180 (424 SE2d 861) (1992) (physical precedent). However, it is clear that, having been summoned to the scene of a domestic disturbance and having seen defendant forcibly march his family into their dwelling, quite possibly at gunpoint, the officers had probable cause to effectuate a warrantless arrest for a battery constituting a family violence offense as defined by OCGA § 19-13-1 (2). OCGA § 17-4-20 (a). See also Gilbert v. State, 209 Ga. App. 483, 484-485 (2) (433 SE2d 664) (1993). The warrantless entry into defendant’s home was made in “hot pursuit” since defendant refused Deputy Fortner’s command to halt. “Absent exigent circumstances or consent, an entry into a private dwelling to conduct a search or effect an arrest is unreasonable without a warrant. However, a suspect may not defeat an arrest which has been set in motion in a public place by the expedient of escaping to a private place. Since the arrest of [defendant in his home] was based upon [Deputy Fortner’s] ‘hot pursuit’ of the subject, such arrest was a lawful activity.” (Citations and punctuation omitted.) Brown v. State, 163 Ga. App. 209, 210 (1) (294 SE2d 305) (1982). The contention that the officers were not in the lawful discharge of their official duties at the time defendant pointed a gun at each of them and violently resisted arrest is without merit. From the evidence adduced below, a rational trier of fact could reasonably have found defendant guilty beyond a reasonable doubt of aggravated assault against each of the two law enforcement officers by pointing a pistol as well as felony obstruction of each officer by resisting lawful arrest with violence. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Thus, defendant’s enumeration of the general grounds is without merit.

2. Defendant claims that the warrantless post-arrest seizure from his home of the weapon with which he assaulted the officers was unauthorized. However, defendant made no timely written motion to suppress this pistol and the weapon was admitted into evidence without objection. Accordingly, this argument, raised for the first time on appeal, cannot be addressed. “[Defendant] failed to raise a [Fourth Amendment or] due process objection below and this court will not consider issues and grounds for objection, even of constitutional magnitude, which were not raised and determined in the trial court.” (Citations and punctuation omitted.) Gee v. State, 210 Ga. App. 60, 61 (3) (435 SE2d 275) (1993).

3. Before he took the stand on his own behalf, defendant made a mid-trial oral motion to exclude as prejudicial any cross-examination of him as to the existence of a civil rights suit he had pending against Lumpkin County growing out of his warrantless arrest. The trial court overruled his motion and the State was permitted to cross-examine defendant as to his pending suit. This evidentiary ruling is enumerated as error. However, the ground urged on appeal is an objection to the lack of a proper foundation for cross-examination as to the existence of possible bias. This ground is raised for the first time on appeal and cannot be considered. Moreover, since the existence of the pending civil suit did not impermissibly place defendant’s character in issue, there was no abuse of the broad discretion reposed in the trial court by failing to prohibit that brief line of cross-examination of the accused. “If a defendant in a criminal case wishes to testify and announces in open court his intention to do so, he may so testify in his own behalf. If a defendant testifies, he shall be sworn as any other witness and may be examined and cross-examined as any other witness, except that no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue.” OCGA § 24-9-20 (b). This enumeration is without merit.

4. Defendant also argues for the first time on appeal that he was denied effective assistance of counsel. Appellate counsel (different from trial counsel) was appointed within the 30-day period following the entry of the judgments of conviction, in time to file the notice of direct appeal without requiring the 30-day extension of time authorized by OCGA § 5-6-39 (a) (1). The record contains no motion for new trial. In order to preserve the issue of trial counsel’s effectiveness for appellate review, “a claim of ineffective assistance of counsel [must] be determined by means of an evidentiary hearing at the earliest practicable moment.” Ponder v. State, 260 Ga. 840, 841 (1) (400 SE2d 922) (1991). Logically, it would seem that by proceeding with a direct appeal without filing a motion for new trial demanding an evidentiary hearing on the claim of ineffective assistance, defendant would have waived or abandoned this ground for reversal and a new trial. See Maxwell v. State, 262 Ga. 541, 543 (3) (422 SE2d 543) (1992). Nevertheless, we are bound by the whole court decision in King v. State, 208 Ga. App. 77 (2) (430 SE2d 640) (1993) holding the contrary. We therefore remand the case to allow the trial court an opportunity to consider defendant’s claim of ineffective assistance of counsel. But see Cost v. State, 263 Ga. 720, 721 (2) (438 SE2d 79) (1994) (waiver where appellant, having been informed by appellate counsel that any claim of ineffective assistance of trial counsel must be raised in a motion for new trial demanding an evidentiary hearing, directed appellate counsel to forgo the motion for new trial and proceed with direct appeal).

Judgment affirmed and case remanded.

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

Decided March 9, 1994.

John R. Burdges, for appellant.

David C. Turk III, District Attorney, for appellee.


text:
    A93A2574.
    A & P TRANSPORTATION, INC. v. DEAN et al.
    (441 SE2d 818)
   Pope, Chief Judge.

Following entry of final judgment, defendant appeals the trial court’s grant of plaintiffs’ motion for partial summary judgment and denial of defendant’s cross-motion for summary judgment.

Viewing the evidence presented to the trial court in support of and in opposition to the parties’ cross-motions for summary judgment in the light most favorable to defendant as the non-moving party on summary judgment, the record reveals plaintiff Bobby E. Dean was employed by defendant A & P Transportation in 1990 and, with the exception of a three-month leave of absence, has worked continuously for defendant. At the time he was hired by defendant, Dean did not participate in defendant’s group health insurance. In February 1992, however, Dean applied for group insurance for himself and his family and the defendant began withholding a premium from his wages for such insurance. In April 1992, Dean’s wife was hospitalized. When the Deans submitted her bills for payment, they were advised that Dean had no insurance coverage.

The undisputed evidence shows that defendant did not submit Dean’s application for insurance coverage to its current group insurance provider at the time Dean made application for insurance because defendant anticipated changing insurers in the near future. Instead, defendant submitted Dean’s application, along with information on other employees, to a prospective insurer. It was not until after Dean’s wife was hospitalized that the prospective insurer to whom Dean’s application had been submitted decided that it would not provide coverage to defendant’s employees. No evidence was presented that Dean was told at the time he applied for insurance coverage that his application would only be submitted to a prospective insurer and not to his employer’s current insurer.

The parties and the trial court agreed that our Supreme Court’s decision in Dawes Mining Co. v. Callahan, 246 Ga. 531 (272 SE2d 267) (1980) controls this case. In Dawes Mining, the Supreme Court discussed certain duties an employer owes his employee regarding group insurance available through the employer. In that case the employer had changed group carriers without notifying its employees that the new insurance policy contained a provision which prohibited payment of medical expenses incurred as the result of a pre-existing condition until the policy had been in effect for a certain period of time. Id. at 532. Our Supreme Court held “that when changing a group policy insuring contributing employees and obtaining the applications of those employees, the employer acts as an agent of the employees [cits.], and as such is under a duty to notify the employees of differences between the old and new policies and of any rights the employees may have to continue the old insurance on an individual basis. We hold further that where this duty is breached, an employee can recover such damages as result from the difference in coverage.” Id. at 535-536.

Although this case is somewhat factually different from Dawes Mining, the same analysis of duty and breach are applicable in this case. When an employee makes application for group health insurance coverage and the employer begins deducting premiums from the employee’s salary for that purpose the employer has a duty to use reasonable efforts to obtain health care coverage for that employee as soon as possible. Furthermore, the employer has a duty to notify the employee if his application for insurance will be treated differently than other employees. See generally City of Brunswick v. Carney, 187 Ga. App. 634 (1) (a) (371 SE2d 201) (1988). Under the facts of this case, we hold that the trial court correctly found that the employer’s decision to submit Dean’s application only to a prospective insurer and not also to the current provider of group insurance for defendant’s other employees constitutes a breach of that duty. See generally Woodman Co. v. Adair, 164 Ga. App. 603 (294 SE2d 579) (1982) (holding the employer breached the duty owed to its employee by erroneously advising the employee he would continue to have coverage for 30 days following his termination of employment under the employer’s group policy); Dinnan v. Totis, 159 Ga. App. 352 (283 SE2d 321) (1981) (holding that the employer breached a duty to its employees by allowing their insurance coverage to lapse without giving them reasonable notification of the lapse).

In reaching our decision we are mindful that the current insurer for the defendant was not obligated to provide coverage to Dean and may have refused him coverage. However, it cannot be said that submitting Dean’s application to the current insurer would have been futile because that insurer had an ongoing contractual relationship with defendant and other employees of defendant and may have, for that reason, given more favorable consideration to Dean’s application. The prospective insurer, on the other hand, had no contractual obligation or existing relationship with the defendant or any of defendant’s employees.

Judgment affirmed.

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

Decided March 9, 1994.

Patton & Price, C. Ronald Patton, for appellant.

McCamy, Phillips, Tuggle & Fordham, Stephen A. Williams, for appellees.


author: Blackburn, Judge.

text:
    A94A0079.
    In the Interest of D. L. G. et al., children.
    (442 SE2d 11)
   Blackburn, Judge.

Appellant appeals an order of the Juvenile Court of Clayton County which found appellant’s three children to be deprived and placed them in temporary custody of the Department of Family & Children Services.

1. Appellant asserts that the trial court failed to make specific findings of fact sufficient to support its order finding deprivation. It is well-established that “ ‘[i]n ruling on deprivation petitions, findings of fact should be made in accordance with [OCGA § 9-11-52 (a)]. . . .’ [Cit.]” In the Interest of A. A. G., 143 Ga. App. 648 (1) (239 SE2d 697) (1977). See also W. R. G. v. State of Ga., 142 Ga. App. 81 (235 SE2d 43) (1977); Jackson v. Jackson, 145 Ga. App. 564 (244 SE2d 91) (1978); OCGA § 15-11-33.

In the present case, the trial court’s order sets forth the allegations contained in the deprivation petition, facts regarding the informal hearing (such as date and those in attendance), and facts regarding the formal hearing (again, the date of the hearing and a list of those in attendance). Thereafter, the trial court set forth its conclusions. The trial court did not adopt the allegations contained in the deprivation petition as conclusions of fact.

“Finding of fact and conclusions of law are mandatory under [OCGA § 9-11-52 (a)]. [Cit.] ‘The trial judge is to ascertain the facts and to state not only the end result of that inquiry but the process by which it was reached.’ [Cit.] ‘A mere recitation of the events that took place at the trial does not satisfy the requirements of [OCGA § 9-11-52 (a)].’ [Cits.]” Woodruff v. B-X Corp., 154 Ga. App. 197 (2) (267 SE2d 757) (1980). Furthermore, “[a] bare statement of what the court considered in reaching its conclusions is not a recitation of how those facts give support to or what constitutes the separate conclusions. [Cits.]” Moore v. Farmers Bank of Union Point, 182 Ga. App. 94, 95 (354 SE2d 692) (1987). Therefore, as the trial court failed to set forth its findings of fact upon which it based its finding of deprivation, we must remand this appeal with direction that the trial court vacate the judgment, prepare appropriate findings of fact, and enter a new judgment, after which another appeal may be made. Id.

Decided March 9, 1994.

Robert L. Waller III, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Staff Attorney, Crews, Salter & Gisler, H. Burton Crews, Jerry L. Patrick, Jr., for appellee.

2. We are unable to examine the merits of the trial court’s order prior to the remand of this case.

Judgment vacated and appeal remanded with direction.

Birdsong, P. J., and Cooper, J., concur.


text:
    A94A0124.
    SCHOFIELD v. COX ENTERPRISES, INC.
    (441 SE2d 693)
   Blackburn, Judge.

Appellant Brenda Schofield, as executrix of the estate of Edward Schofield and as surviving spouse, brings this appeal from the trial court’s order granting summary judgment to Cox Enterprises, Inc., d/b/a Atlanta Journal & Constitution (Cox), the defendant in the underlying case. Schofield asserts that the trial court erred in finding that no issue of material fact existed and in granting Cox’s motion for summary judgment.

Appellant brought the underlying action against Berhane Woldemichael and Woldemichael’s employer Cox to recover damages for the alleged wrongful death of Edward Schofield. The undisputed facts show that in August 1991, Woldemichael was employed by Cox as an assistant newspaper delivery route manager. Woldemichael was required to furnish his own transportation to deliver newspapers to the vending machines on his route. For this purpose, Woldemichael used his wife’s van. Woldemichael was paid an hourly wage for a predetermined number of hours and mileage for a predetermined number of miles.

Woldemichael’s work schedule varied; however, on August 12, 1991, the day of the accident, Woldemichael was scheduled to work a morning and an afternoon shift. The time between the morning and afternoon routes (between one-and-one-half and two-and-one-half hours) was Woldemichael’s personal-unpaid time. After Woldemichael completed his morning route on the date of the incident, he had some unsold newspapers to return to Cox. Although he was not required to return them immediately, Woldemichael planned to take the newspapers to Cox after he had the alignment on his wife’s van checked.

Woldemichael stopped at Crazy Ed’s Tire & Auto Center for an adjustment to the front-end alignment previously performed there. Crazy Ed’s was located across the street from his last delivery stop. Upon Mr. Schofield’s request and at his direction, Woldemichael drove the van onto the alignment ramp. When Mr. Schofield motioned Woldemichael to stop the van, Woldemichael applied the brakes but the van continued to move forward off the front end of the ramp. Mr. Schofield died as a result of being pinned against the wall by the van.

Appellant asserts that Cox was responsible for Mr. Schofield’s death on a theory of respondeat superior. “To hold a master liable for a tort committed by his servant, it must appear that at the time of the injury the servant was engaged in the master’s business and not upon some private and personal matter of his own; that is, the injury must have been inflicted in the course of the servant’s employment. The test is not that the act of the servant was done during the existence of the employment, but whether the servant was at that time serving the master.” (Citations and punctuation omitted.) Curtis, Inc. v. Kelley, 167 Ga. App. 118, 119 (305 SE2d 828) (1983). See also Riel v. Paulding County Bd. of Ed., 206 Ga. App. 230 (1) (425 SE2d 305) (1992); Aubrey Silvey Enterprises v. Bohannon, 182 Ga. App. 738 (356 SE2d 693) (1987).

Marketing Sales Indus. of Ga. v. Roberts, 118 Ga. App. 718 (165 SE2d 319) (1968), is analogous to the present case. Therein, the plaintiff was injured when he was struck by an automobile driven by Thompson, an employee of the defendant. Thompson’s employment as a salesman of built-in vacuum cleaning systems required him to provide his own transportation to make presentations to homeowners during the evening. On the day of the incident, Thompson had stopped by his office once, but was not required to be back to the office until late afternoon. On his way home from the Blue Lantern Bar to change into work clothes, Thompson collided with the plaintiff. We determined that the defendant employer was entitled to summary judgment because, at the time of the collision, Thompson was on his own time and engaged in his own pursuits. Id. at 719.

Schofield argues that because Woldemichael’s van was necessary for his employment, the maintenance of the van was within the scope of his employment. This argument is without merit. Woldemichael’s particular transportation was not specified by Cox, nor was the condition of the front-end alignment on the van. Furthermore, it makes no difference in our analysis whether Woldemichael was having his alignment checked or performing any other personal errand as long as he was on a personal matter and not serving his employer. For the foregoing reasons, the trial court was correct in granting Cox’s motion for summary judgment.

Decided March 9, 1994.

Theodore P. Bianco, Wetzel & Carroll, Michael L. Wetzel, for appellant.

Drew, Eckl & Farnham, W. Wray Eckl, Chambers, Mabry, Mc-Clelland & Brooks, Clyde E. Rickard III, Gorby & Reeves, Michael E. Fisher, Fain, Major & Wiley, Thomas E. Brennan, Brian H. Alligood, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

       Woldemichael is not involved in this appeal.


text:
    A94A0151.
    McLEAN v. CONTINENTAL WINGATE COMPANY, INC. et al.
    (442 SE2d 276)
   Blackburn, Judge.

The appellant, John McLean, Jr., filed the instant action for damages based on an alleged breach of an employment contract against Continental Wingate Company, Inc., five other affiliated companies, Continental Wingate Company of Georgia, Continental Win-gate Associates, Wingate Management Company, Wingate Development Company, Continental Wingate Capital Corporation, and Gerald Schuster, the president of the parent company, Continental Wingate Company, Inc. The appellees, hereinafter referred to as Continental Wingate, collectively responded, asserting several defenses and a counterclaim.

Following the commencement of discovery, the appellees moved for summary judgment, maintaining that the purported employment contract was vague and uncertain, and the amount of any earned profits due was within the discretion of Continental Wingate’s director. Schuster further moved for summary judgment on the grounds that the “alter ego” theory asserted by McLean in his responsive pleadings was inapplicable to him. The motion was granted by the trial court and this appeal followed.

Construed in the light most favorable to McLean, the non-movant, the record shows that Continental Wingate is in the business of developing and syndicating various real estate projects. McLean had been employed with Continental Wingate since 1979, as vice president of Continental Wingate Company of Georgia, and later as director of the parent corporation, and during this time, Continental Win-gate and McLean executed several written agreements memorializing the nature of their employment relationship. Two prior agreements provided that McLean would receive a salary in addition to a percentage of the profits of the company. In calculating the profits pursuant to those agreements, Continental Wingate ascertained the fees generated from investors and deducted the cost of syndicating the venture, but did not deduct the cost of the operation of or construction of the projects.

The terms of the agreement at issue are contained in a letter dated November 23, 1984, written by Schuster, and executed by Schuster and McLean. This agreement covered McLean’s employment with Continental Wingate commencing January 1, 1985, through December 31, 1989. Under its terms, McLean would receive an annual salary of $75,000, a Cadillac automobile, a one-time payment of $10,000 as a fee from a specific real estate project, in addition to a percentage of profits earned by Continental Wingate. The relevant portion of the letter at issue, specifically paragraph five provided that, McLean “shall receive a percentage of the profits earned by Continental Wingate Company, Inc., or its affiliates from certain additional transactions upon the terms and conditions more specifically set forth below. These sums will be paid to you as the money is received by the company. Specifically, you shall receive an amount equal to 7.5 per cent of the net proceeds earned by Continental Win-gate Company of Georgia Inc., or its parent, Continental Wingate Company, Inc, from all transactions in which Continental Wingate Company of Georgia Inc., or its affiliates is the majority participant in the development procedure. . . .You shall also receive 7.5 per cent of the net proceeds earned by Continental Wingate Company of Georgia, Inc., or its parent, Continental Wingate Company, Inc., from future transactions in which Continental Wingate Company of Georgia, Inc, is the major participant in the development process. The net profits due you shall be determined by Continental Wingate Company, Inc., in its sole discretion, as they relate to development proceeds, exclusive of operations.”

Under paragraph seven of this agreement, McLean “shall accrue an amount equal to 4 per cent of the net profit earned by Continental Wingate Capital Corporation for those third-party syndications solicited by [him] and closed in conjunction with Continental Wingate Capital Corporation for the purpose of syndication.” In exchange for this compensation, McLean agreed to use his best efforts, skills, and abilities to faithfully promote the interest of the companies in overseeing the day-to-day operations of the company and its assets, the development of new properties, and the maintenance of relationships necessary to continue business interests in the company. The contract further provided that there would be an annual accounting provided to McLean of the profits earned on future projects.

As of January 1985, McLean had been projected to earn $641,493 based upon Continental Wingate’s projected earnings on various real estate projects. This figure included projections through 1990. By December 1988, the profit calculations were re-evaluated by Continental Wingate’s treasurer, and as a result, McLean’s total earned profits had been reduced to $302,599, based upon Continental Wingate’s unilateral decision to deduct working capital advances from the earned profits in calculating the profits due. McLean protested to the use of the working capital in the profit analysis, as such method of calculating profits conflicted with the terms of the employment agreement, and requested that the company recalculate his profits using the January 1985 figures. By December 21, 1989, without replying to McLean’s challenge to the calculation method, Continental indicated that McLean had been paid in full inasmuch as he had indisputably received $302,599, in bonus payments. To no avail, McLean demanded the balance of $338,894, which was due based upon his calculations under the method used under the prior agreements. McLean was subsequently terminated. Based upon Continental Wingate’s failure to make payment of the remaining sums allegedly due pursuant to the terms of the agreement, this action ensued.

1. Initially, McLean maintains that the trial court erred in determining as a matter of law that the agreement was too vague to be enforceable. We agree.

“ ‘The test of an enforceable contract is whether it is expressed in language sufficiently plain and explicit to convey what the parties agreed upon. (Cit.)’ [Cit.]” Advance Security v. Superior Surgical Mfg. Co., 197 Ga. App. 769, 771 (1) (399 SE2d 488) (1990). Any ambiguity in the agreement must be construed strongly against Continental Wingate inasmuch as the company drafted the document. Gram Corp. v. Wilkinson, 210 Ga. App. 680 (437 SE2d 341) (1993). Moreover, “it is well-settled that the policy of the law is against the destruction of contracts on the ground of uncertainty if it is possible in the light of the circumstances under which the contract was made to determine the reasonable intention of the parties.” (Citations and punctuation omitted.) Id. at 681. “The existence or non-existence of ambiguity in a contract is a question of law for the court. [Cits.]” Jaraysi v. Yates, 206 Ga. App. 217, 218 (424 SE2d 793) (1992).

In the case sub judice, the contract was sufficient to convey the intentions of the parties concerning McLean’s compensation package. While Continental Wingate maintains that the contract is vague and unenforceable because the agreement did not contain a formula for the calculation of the profits to which McLean was entitled under its terms, “it is not necessary for a contract to state all details of the agreement. . . .” Southeastern Underwriters v. AFLAC, 210 Ga. App. 444, 446 (436 SE2d 556) (1993). The contract did not contain a stated formula for the calculations of profits or net proceeds, but the parties, based upon their past dealings, understood the meaning of the term “net proceeds,” and the method of establishing the percentage of profits due for his services. We further note that the contract was ratified by Continental Wingate’s payment of the prior incentive bonuses pursuant to its terms based upon calculations made without the use of the operating expenses as required by the terms of the contract. Although the company unilaterally attempted to modify the method of calculating the profits in December 1988, “ ‘[i]t is elemental that it is not possible to have a unilateral modification of a contract previously entered into between the parties.’ [Cit.]” American Express Travel Related Svcs. Co. v. Berlye, 202 Ga. App. 358, 361 (414 SE2d 499) (1991). While the contract provided that the amount of payments due McLean was in the sole discretion of the company, the terms of the agreement specifically excluded the use of operating expenses in the calculation of profits. Since we find no ambiguity in the terms of the contract and a material issue of fact remains as to whether the company breached the contract by its prohibited use of operating expenses in determining the bonus to which McLean was entitled, we must conclude that the trial court erred in granting Continental Wingate’s motion for summary judgment on his claim for the balance due under paragraphs five and seven of the contract.

2. Next, McLean maintains that the trial court erred in finding as a matter of law that Schuster could not be held liable for the wrongful acts of the corporations under the alter ego theory. Specifically, McLean maintains that the corporations were totally controlled by Schuster and used by Schuster as a conduit for his personal affairs. To support those assertions, McLean averred in his affidavit that the corporations did not hold annual meetings and did not maintain minute books for inspection. McLean further averred that Schuster used the corporations’ assets to purchase personal property, including realty, for himself and for family members, which did not benefit the corporation. Moreover, Schuster did not treat the parent and affiliate companies as separate entities.

“To establish the alter ego doctrine it must be shown that the stockholders’ disregard of the corporate entity made it a mere instrumentality for the transaction of their own affairs; that there is such unity of interest and ownership that the separate personalities of the corporation and the owners no longer exist; and to adhere to the doctrine of corporate entity would promote injustice or protect fraud.” (Citations and punctuation omitted.) Custom Lighting &c. v. Hampshire Co., 204 Ga. App. 293, 295-296 (2) (418 SE2d 811) (1992). To refute the averments made in McLean’s pleadings and his affidavit, Schuster submitted his affidavit and the affidavit of the treasurer of the parent corporation in which both denied that McLean commingled his personal assets with those of the corporation and denied any distribution to Schuster or his family other than earned salaries. Both further maintained that each corporate entity maintained separate banking accounts and strictly adhered to corporate formalities. The treasurer also averred that the corporations were adequately capitalized and filed separate tax returns.

Decided March 9, 1994.

Griffin, Cochrane & Marshall, John D. Marshall, Jr., Terrence L. Croft, for appellant.

Morris, Manning & Martin, Anthony E. Diresta, Marc J. Smith, for appellees.

Based upon the diametrically opposing evidence in the record before us, we believe that a material issue of fact exists for jury resolution on whether Schuster operated the companies as an alter ego and as a subterfuge rather than as distinct business entities. See B. J. Howard Corp. v. Skinner, Wilson & Strickland, 172 Ga. App. 180 (2) (322 SE2d 306) (1984). Accordingly, the trial court erred in granting summary judgment in favor of Schuster on McLean’s alter ego theory.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.

       In its June 14, 1993 order granting the motion for summary judgment, the trial court denied Continental Wingate Capital Corporation’s motion to dismiss based upon lack of jurisdiction. The corporation did not appeal the trial court’s decision on this issue.


author: McMurray, Presiding Judge.

text:
    A94A0163.
    YOUNG v. THE STATE.
    (444 SE2d 167)
   McMurray, Presiding Judge.

Defendant was charged, via accusation, of making harassing telephone calls (Count 1) and criminal trespass (Counts 2 and 3). The case was tried before a jury and defendant was found guilty on all counts of the accusation. Defendant filed this appeal, pro se. Held:

“Factual representations in briefs unsupported by the record will not be considered on appellate review. Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (1) (366 SE2d 223).” Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 765 (1) (431 SE2d 746). In the case sub judice, defendant asserts seven enumerations of error that are dependent upon review of a transcript of evidence and proceedings. However, defendant stipulates in his notice of appeal that a transcript of evidence and proceedings will not be included in “the record of appeal, because there isn’t a transcript.” Further, the record neither includes a transcript of evidence and proceedings prepared from recollection pursuant to OCGA § 5-6-41 (g) nor a stipulation of the case pursuant to OCGA § 5-6-41 (i). Consequently, “ ‘absent a transcript, “we must assume the ruling[s] of the trial court [are] supported by the evidence.” (Cit.)’ Odum v. State, 196 Ga. App. 293 (3) (396 SE2d 27) (1990).” Grisson v. State, 208 Ga. App. 679, 680 (431 SE2d 468).

Decided March 9, 1994.

Wendell H. Young, pro se.

Paul L. Howard, Jr., Solicitor, Deborah W. Espy, Cheryl L. Harper, Assistant Solicitors, for appellee.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


text:
    A94A0184.
    CLEVELAND v. THE STATE.
    (441 SE2d 820)
   McMurray, Presiding Judge.

Via indictment, defendant was charged with aggravated assault and possession of a firearm during the commission of a crime. He was acquitted on the aggravated assault charge and convicted on the possession of a firearm charge. His motion for a new trial was denied and he appealed. In his sole enumeration of error, defendant asserts his acquittal on the aggravated assault charge demands a reversal of his conviction on the possession of a firearm charge. We disagree. Held:

“While it may be difficult to reconcile the conviction of defendant with the . . . jury’s verdict acquitting defendant of the [aggravated assault charge], we note that the inconsistent verdict rule was abolished in Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216). See also Allen v. State, 203 Ga. App. 359 (416 SE2d 869). The evidence at trial must be viewed in the light most favorable to upholding the verdict of the jury. Since there is ample evidence that defendant [used a firearm in the commission of a crime], a rational trier of fact was authorized to conclude that defendant was guilty beyond a reasonable doubt of the offense of possession of a firearm [during the commission of a crime]. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Dorsey v. State, 206 Ga. App. 709, 715 (7) (426 SE2d 224).” Garcia v. State, 208 Ga. App. 808 (432 SE2d 122). See United States v. Powell, 469 U. S. 57 (105 SC 471, 83 LE2d 461) (1984).

Judgment affirmed.

Pope, C. J., and Smith, J., concur.

Decided March 9, 1994.

Robert Culpepper III, for appellant.

J. Brown Moseley, District Attorney, Robert R. Auman, Assistant District Attorney, for appellee.


text:
    A93A2129, A93A2130.
    MONK et al. v. DIAL et al.; and vice versa.
    (441 SE2d 857)
   McMurray, Presiding Judge.

At shortly past 10:00 p.m. on May 21, 1991, Miller A. Dial was driving his pickup truck on Georgia Route 10 near Monroe, Georgia when it collided with a tractor-trailer driven by defendant Larry Monk and owned by defendant Apache Transport, Inc. (“Apache”). Plaintiff Agnes H. Dial, individually and as the executrix of the estate of her deceased husband, Miller A. Dial, brought this action for wrongful death and other damages, alleging that the collision and death of her husband were the result of the negligence of Monk and Apache. Defendant Royal Indemnity Company is the issuer of a policy of indemnity insurance which provides coverage to Apache for the claims of the plaintiff. In Case No. A93A2129, defendants appeal following a jury verdict and judgment awarding damages to plaintiff for property damages, pain and suffering, and for the value of the life of the decedent. In Case No. A93A2130, plaintiff appeals the verdict and judgment insofar as they deny any award of punitive damages. Held:

1. In the first enumeration of error of the main appeal, defendants argue that there was no evidence to support the verdict and judgment for decedent’s pain and suffering. This argument is based on the supposition that decedent did not consciously experience pain such as would support an award of damages for pain and suffering, that is, that death was instantaneous. The decedent’s pickup truck was traveling at great speed when it collided with the tractor-trailer and there was no movement or sign of life after the collision. Nonetheless, from evidence that the decedent’s vehicle veered shortly before the collision, the jury could infer that decedent was aware of the impending crash, and from these circumstances could extrapolate the probable mental state of decedent in that last moment of consciousness. The fright, shock, and mental suffering experienced by an individual due to wrongful acts of negligence will authorize a recovery where attended with physical injury. Candler v. Smith, 50 Ga. App. 667, 673 (3 (a)) (179 SE 395). Contrary to defendants’ assertion, we find no requirement that the physical injury precede the mental pain and suffering. See Cooper v. Mullins, 30 Ga. 146, 152 (76 AD 638).

Once it is established that damages for pain and suffering were authorized by the evidence, the amount of those damages becomes a matter for the enlightened conscience of the jury. In the absence of plain proof that the verdict was the result of prejudice or bias, this Court will not interfere. Dargan, Whitington & Conner, Inc. v. Kitchen, 138 Ga. App. 414, 418 (3) (226 SE2d 482).

2. The denial of defendants’ motion for directed verdict was not error due to a lack of evidence as to the cause of death.

3. The trial court did not err in admitting evidence of prior similar collisions involving Apache tractor-trailers. “Where evidence of a prior similar accident tends to show condition and knowledge of that condition, the evidence is admissible. [Cits.] All that is required is that the prior accident be sufficient to attract the owner’s attention to the dangerous condition which resulted in the litigated accident. [Cit.]” Pembrook Mgmt. v. Cossaboon, 157 Ga. App. 675, 677 (3) (278 SE2d 100). See also Conyers Toyota v. Southern Bell Tel. &c. Co., 198 Ga. App. 90, 93 (5) (400 SE2d 662). While defendants contend that the prior incidents were not similar, we hold otherwise as the prior collisions, as well as that in the case sub judice involved Apache tractor-trailers which were blocking the roadway on clear nights. The drivers in each incident had not been drinking and the evidence was consistent with a hypothesis that the drivers who collided with the tractor-trailers had not seen them in time to avoid the collisions. The evidence concerning the prior incidents was admissible to show that Apache’s attention should have been attracted to the issue of nighttime visibility of tractor-trailers. Any error in the trial court permitting plaintiff’s attorney to reference inadmissible police reports concerning these earlier collisions during the cross-examination of Apache’s chief executive officer was harmless under the circumstances of the case sub judice.

4. The trial court did not err in permitting plaintiff’s experts to base opinions on hearsay. Under the decision in King v. Browning, 246 Ga. 46, 47 (268 SE2d 653) such testimony was admissible and the experts’ lack of personal knowledge goes to the weight to be assigned the evidence rather than its admissibility. See also Bentley v. B. M. W., Inc., 209 Ga. App. 526, 528 (2) (433 SE2d 719).

5. Next, defendants contend that the trial court erred in admitting expert testimony that defendant Apache was obligated to exceed federal standards relating to lights and reflectors. Defendants’ brief connects this enumeration to the testimony of plaintiffs mechanical engineering expert, Cerny. However, we have reviewed the testimony of this witness, including particularly those pages designated by defendants and have been unable to find any statement by this witness suggesting that defendants were negligent in failing to exceed the federal standards. The factual predicate being absent from the record, we must conclude that this enumeration of error lacks merit.

6. Plaintiff presented as an expert witness a psychologist who had conducted extensive research on the difficulties of nighttime driving including vision problems. Defendants’ next two enumerations of error are concerned with the testimony of this witness.

First, defendants contend that the trial court erred in admitting expert testimony regarding the alleged “general hazard” of nighttime accidents and safety measures taken by other operators of trucks and buses. In response to defendants’ motion in limine seeking to exclude such evidence, the trial court ruled that studies concerning nighttime driving of which defendants were knowledgeable or should have been knowledgeable (“at least put the onus on them to be knowledgeable”) would be admissible.

When the psychologist referred to studies conducted in the 1940’s and 1950’s by Greyhound Bus Line and the U. S. Post Office as the earliest research concerning the visibility of large vehicles at night, defendants objected stating at most a hearsay ground for the objection. The testimony in question was provided as part of a brief summary of the history of the witness’ area of expertise and thus constituted a part of that body of knowledge upon which the expert’s opinions were based. It was not error to permit the expert witness to state the facts on which his opinion was based. Elec. Workers &c. of Atlanta v. Dept, of Transp., 198 Ga. App. 345, 346 (2) (401 SE2d 347). And, insofar as the expert’s opinions may have been based on hearsay, such goes to the issue of credibility rather than admissibility as addressed in Division 4 of this opinion.

Defendants also enumerated as error the admission of the psychologist’s testimony relating to the nighttime vision of the decedent because he was not qualified to render such opinion and the testimony was speculative and without foundation in fact. Defendants’ motion in limine sought to exclude testimony from the psychologist regarding what the decedent could have seen at the time of the accident and the trial court ruled that such testimony could not be presented before the jury. While, via this enumeration of error, defendants maintain that such testimony was erroneously permitted at trial such is not the case. The psychologist did testify at length concerning the normal reduction in visual perception in low light conditions, the deterioration of nighttime vision which naturally accompanies aging (the decedent was 62 years of age), and the perceptual errors which might occur under the circumstances confronted by the decedent. While this evidence would presumably provide some assistance to the jury in determining what the decedent saw, it would not be correct to characterize this testimony as directly stating what the decedent could have seen on the night in question. Nor did the substance of the testimony involve matters reserved to medical experts.

Decided February 24, 1994

Reconsideration denied March 10, 1994

Dennis, Corry, Porter & Gray, Robert E. Corry, Jr., Pamela J. Byrd, Robert G. Ballard, for appellants.

William G. Gainer, Roberta A. Earnhardt, David W. Boone, for appellees.

7. Defendants’ remaining enumerations of error are also without merit. The ninth enumeration of error complains of the trial court’s refusal to give a requested jury charge predicated on OCGA § 40-6-50 (b). However, the requested charge was argumentative, not adjusted to the evidence in the case, contained an inadequate statement of law, and constituted an impermissible comment on the evidence. There was no error in the refusal to use the requested charge.

The defendants’ final enumeration of error complains of the form of the verdict. Yet, defendants having failed to object to the form of the verdict at the time it was published have waived their right to object on appeal. Southern Cellular Telecom v. Banks, 208 Ga. App. 286, 289 (7) (431 SE2d 115).

8. In the cross-appeal (Case No. A93A2130), plaintiff maintains that the evidence demanded an award of punitive damages so that the failure of the jury to return such a verdict reflects some bias, prejudice, or error in the jury’s understanding of the instructions. However, “in a case where punitive damages are authorized, it is exclusively within the province of the jury to determine whether to award them and how much to award. See generally Bonds v. Powl, 140 Ga. App. 140, 142 (230 SE2d 133) (1976).” Smyrna Marine v. Stocks, 172 Ga. App. 426, 427 (2) (323 SE2d 286).

Judgments affirmed.

Blackburn, J., concurs. Johnson, J., concurs in judgments only.


text:
    A93A2267.
    ARROW COMPANY v. HALL.
    (441 SE2d 794)
   Pope, Chief Judge.

The issue presented in this workers’ compensation case is whether participation as a member of the board by the ALJ, who decided the case below, constitutes reversible error in cases decided by the board before April 15, 1993. Effective April 15, 1993, OCGA § 34-9-47 (b) was amended to provide that “an administrative law judge who served as the hearing officer in a case may not serve as a member of the board to review the same case on appeal.”

In this case, claimant Thelma Hall filed a workers’ compensation claim against her employer, the Arrow Company, on September 28, 1989. The case was assigned to ALJ Yvette Miller, who issued an award in this case on May 31, 1991. On June 30, 1992, that award was reversed by a majority of the board. By order dated September 2, 1992, the superior court affirmed the decision of the board on certain grounds and remanded the case to the board on another issue. By the time the board issued its second decision in this case on February 8, 1993, former ALJ Miller had been appointed as a member of the board. She participated in the decision of the board issued on that date, which vacated the board’s prior award dated June 30, 1992 and made the award issued by Miller on May 31, 1991 the award of the board, with the exception that the reference to occupational disease was amended to reflect that medical expenses are payable for an injury by accident. By order dated May 14, 1993, the superior court affirmed the award of the board based on the any evidence standard and did not address specifically the issue raised on appeal to this court.

Although OCGA § 34-9-47 (b) was only recently amended to expressly preclude the situation presented on appeal, OCGA § 15-1-8 (a) (3) has long provided that “[n]o judge or Justice of any court, magistrate, nor presiding officer of any inferior judicature or commission shall: ... (3) Sit in any case or proceeding ... in which he has presided in any inferior judicature, when his ruling or decision is the subject of review, without the consent of all parties in interest.” In this case, it is undisputed that after the case was remanded by the superior court to the board, the parties submitted the case to the board on briefs and no oral argument was held. Our review of the record does not reveal that disclosure was made to the parties that former ALJ Miller would participate in the decision as a member of the board. We reject claimant’s argument that because the employer/ insurer’s counsel either knew or should have known that Miller had been appointed to the board the employer/insurer should have anticipated that Miller would participate in the board’s decision, and therefore the employer/insurer has waived its right to challenge the board’s decision on that basis. By requiring the consent of the parties, OCGA § 15-1-8 (a) (3) requires a knowing waiver. Certainly, if oral argument had been held upon remand to the board, and the employer/insurer failed to object to Miller’s presence on the board at that point, claimant’s argument would be valid. However, we decline to find waiver when, as here, the parties submitted the case to the board on briefs and the board did not disclose that Miller would be a participating member. This case is remanded to the superior court for further proceedings consistent with this decision.

Decided February 24, 1994

Reconsideration denied March 10, 1994.

Wilson, Strickland & Benson, Warner R. Wilson, Jr., Samuel T. Brannan III, for appellant.

William L. Skinner, E. Neal Little, Jr., for appellee.

Judgment reversed.

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

       Arrow Company filed two enumerations of error on appeal. The second enumeration alleges the superior court erred in failing to reverse the award of the board dated February 8, 1993 on the ground that it requires the employer/insurer to pay medical bills which were incurred more than one year before the date of filing the claim in this case, September 28, 1989. In claimant’s brief on appeal, she concedes that this enumeration of error is meritorious and stipulates that medical expenses for her compensable injury must be limited to medical expenses incurred after September 28, 1988.


author: Cooper, Judge.

text:
    A93A2394.
    GOVERNMENT EMPLOYEES INSURANCE COMPANY v. HARDMAN.
    (444 SE2d 165)
   Cooper, Judge.

Plaintiff-appellant is the Government Employees Insurance Company (GEICO). Roselyn Brewer, a named insured under a policy issued by GEICO, was involved in an automobile collision with defendant. As a result of the collision, GEICO paid medical expenses on behalf of Brewer and subsequently filed a lawsuit against defendant, seeking to recover the amount of the medical benefits it paid. Defendant answered the complaint and moved for summary judgment on the grounds that the subrogation clause constituted an invalid assignment of a personal injury claim. The trial court granted defendant’s motion for summary judgment, and GEICO appeals.

The policy issued by GEICO contained the following subrogation clause: “If we make a payment under this coverage, we have the right to sue or otherwise recover the loss from anyone else who may be responsible. The person to whom we make payments must execute and deliver to us all necessary papers, help us enforce our recovery right and do nothing to prejudice such rights.” OCGA § 44-12-24 provides, in relevant part, that “[a] right of action for personal torts . . . may not be assigned.” GEICO argues that its claim for recovery of medical payment benefits is not a claim for personal injury and that subrogation for medical payments coverage is not the assignment of a personal injury claim. These same arguments were decided adversely to GEICO in Government Employees Ins. Co. v. Hirsh, 211 Ga. App. 374 (439 SE2d 59) (1993). Accordingly, we conclude that the trial court’s grant of summary judgment to defendant was correct.

Decided February 22, 1994

Reconsideration denied March 10, 1994

Edward M. Harris, Jr., Vicki M. Knott, for appellant.

Downey, Cleveland, Parker, Williams & Davis, Y. Kevin Williams, Rodney S. Shockley, for appellee.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


text:
    A92A2338.
    FLEEMAN v. DEPARTMENT OF HUMAN RESOURCES.
    (444 SE2d 168)
    Decided March 10, 1994.

      Charles R. Desiderio, for appellant.

      Lindsay A. Tise, Jr., District Attorney, Sherry S. Ellison, Assistant District Attorney, Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, for appellee.
   Blackburn, Judge.

In Fleeman v. Dept. of Human Resources, 208 Ga. App. 97 (430 SE2d 135) (1993), we reversed the trial court’s denial of Fleeman’s motion to dismiss based on the application of the doctrine of collateral estoppel. In Dept. of Human Resources v. Fleeman, 263 Ga. 756 (439 SE2d 474) (1994), the Supreme Court reversed, finding that collateral estoppel did not bar DHR’s claim under OCGA § 19-11-6 (a). Accordingly, this court’s original judgment is vacated, and the judgment of the Supreme Court is hereby made the judgment of this court and the trial court’s judgment is affirmed.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Beasley, P. J., Cooper, Andrews, Johnson and Smith, JJ., concur.


author: Andrews, Judge.

text:
    A93A2009.
    LEMONDS et al. v. WALTON COUNTY HOSPITAL AUTHORITY.
    (441 SE2d 821)
    Decided March 10, 1994.

      Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, Charles B. Tanksley, for appellants.

      Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, M. B. Satcher III, for appellee.

      Alston & Bird, Jack S. Schroder, Jr., James C. Grant, amici curiae.
   Andrews, Judge.

While David Lemonds was receiving treatment as a patient at Walton County Hospital, he became dizzy after having blood withdrawn and fell, fracturing his skull on the floor of the hospital. He, along with his wife who brought a loss of consortium claim, sued the Walton County Hospital Authority for damages on the basis of simple and professional negligence, claiming hospital employees failed to prevent the fall. The trial court granted the hospital authority’s motion for summary judgment on the basis of sovereign immunity and this appeal followed in which appellants claim the trial court erred by concluding that the hospital authority was entitled to sovereign immunity under the Georgia Constitution.

In Thomas v. Hosp. Auth. of Clarke County, 264 Ga. 40 (440 SE2d 195) (1994), the Supreme Court held that “hospital authorities, because they are neither the state nor a department or agency of the state, are not entitled to the defense of sovereign immunity.” Without expressly saying so, the Thomas decision clearly overrules decisions of this Court to the extent they hold otherwise. See Hosp. Auth. of Fulton County v. Litterilla, 199 Ga. App. 345, 347 (404 SE2d 796) (1991), rev’d on other grounds 262 Ga. 34 (413 SE2d 718) (1992); Walker v. Fulton-DeKalb Hosp. Auth., 200 Ga. App. 750 (409 SE2d 529) (1991); Culberson v. Fulton-DeKalb Hosp. Auth., 201 Ga. App. 347, 348 (411 SE2d 75) (1991); Carter v. Fulton-DeKalb County Hosp. Auth., 209 Ga. App. 384, 386 (433 SE2d 433) (1993).

Accordingly, the Walton County Hospital Authority was not entitled to the defense of sovereign immunity and the trial court erred by granting summary judgment on this basis in favor of the hospital authority.

Judgment reversed.

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


author: Smith, Judge.

text:
    A93A2515.
    McKIBBEN v. THE STATE.
    (441 SE2d 895)
   Smith, Judge.

Horace Odell McKibben was indicted on one count of aggravated assault, OCGA § 16-5-21. He was convicted, his motion for new trial was denied, and he appeals.

1. McKibben enumerates the insufficiency of the evidence to support his conviction. His sole contention, made without citation to authority, is that the sheer lapse of time between the commission of the crime and the trial rendered the eyewitness identifications worthless.

In August 1989, the victim was dragged from her car and stabbed with a knife after withdrawing money from a bank teller machine in the Little Five Points area of DeKalb County. Not realizing she was seriously injured, the victim and her passenger returned to their car and drove around searching for McKibben. They located him a short distance away, and he recognized them and ran. The victim testified that she had three very good opportunities to view McKibben’s face on the date of the assault, and she was certain then that she would be able to identify him. She gave a meticulous description to the police, including the length of his eyelashes, his receding hairline, his beard and his clothing. Several days after the assault, the passenger recognized McKibben as he entered her place of work and called the police. At the time of McKibben’s arrest he had a knife in his pocket. The victim identified McKibben again at the time of a preliminary hearing several days later, after recognizing him at an elevator in the courthouse. She identified him yet again at a hearing in September 1991. She was confident in her identification at trial, and noted slight changes in his appearance since the date of the assault. The passenger also identified McKibben at the time of his arrest, at the preliminary hearing, at another hearing, and at trial. Moreover, the passenger was presented with a different suspect shortly after the assault, and told the police that it was not the man who .committed the assault. Viewed in the light most favorable to the verdict, there was ample evidence presented from which a rational trier of fact could reasonably find that McKibben was guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. McKibben contends the trial court erred in charging the jury on the distinction between simple and aggravated assault. McKibben was charged with committing aggravated assault “with a knife, a deadly weapon.” OCGA § 16-5-21 (a) (2). The trial court did not err in defining the essential element of simple assault as an element of aggravated assault with a deadly weapon. Harper v. State, 157 Ga. App. 480 (1) (278 SE2d 28) (1981). The charge was a correct statement of the law and adjusted to the facts of this case, which clearly showed assault with a deadly weapon. The trial court immediately thereafter instructed the jury for a second time on reasonable doubt and burden of proof.

Decided March 10, 1994.

Elliott A. Shoenthal, for appellant.

J. Tom Morgan, District Attorney, Robert E. Statham III, Gregory J. Giornelli, Assistant District Attorneys, for appellee.

3. Finally, McKibben alleges ineffective assistance of counsel. He states in his brief that “he was told on the day of trial” that his former counsel “would no longer be representing him,” and that trial counsel “took over the case on the day of trial.” This is a blatant and egregious misstatement of the facts presented in testimony at the hearing on the motion for new trial. Before trial, McKibben was represented by Claudia Saari, the assistant public defender. Ms. Saari filed a Brady motion, a demand for a list of witnesses, and a motion for discovery approximately one month before trial. She prepared requests to charge. She met with McKibben at least two or three times and spoke to him many times on the telephone. At trial, Ms. Saari was present and actively assisted in the trial of the case. Lori Silverman, another attorney from the public defender’s office, tried the case with Ms. Saari’s assistance. Ms. Silverman was also familiar with the case and had participated in preparing it for trial. Contrary to the statements in his brief, McKibben in fact was represented at trial by two attorneys, both of whom had participated in preparing the case for trial.

In order to establish ineffectiveness of counsel under Strickland v. Washington, 466 U. S. 668, 695-696 (104 SC 2052, 80 LE2d 674) (1984), the appellant must show both (1) legal representation falling below “ ‘an objective standard of reasonableness’ ” and (2) . . . “ ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Bowley v. State, 261 Ga. 278, 280 (404 SE2d 97) (1991). Testimony at the hearing on the motion for new trial fully supported the trial court’s finding that McKibben failed to show ineffectiveness under the standard of Strickland. Scott v. State, 263 Ga. 300 (432 SE2d 107) (1993).

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


author: Beasley, Presiding Judge.

text:
    A93A1776.
    In re FARMER et al.
    (442 SE2d 251)
   Beasley, Presiding Judge.

During the course of Millard Farmer’s representation of Emmitt Stephens in a civil rights action brought by Stephens against Harold Ivey and Bonny Associates, alleging racial discrimination in an attempt by Stephens to lease certain commercial space from Ivey (hereafter “the civil litigation”), both Farmer and his client Stephens were held in contempt of court by Judge William B. Hill. This appeal followed.

Stephens’ suit against Ivey was tried to a jury and resulted in a verdict in defendants’ favor. That case is Stephens v. Ivey, 212 Ga. App. 407 (442 SE2d 248) (1994).

As background, Farmer contends that there exists animosity between him and Judge Hill stemming from their roles as opposing counsel in capital cases prior to Judge Hill taking the bench. Farmer sought on three occasions to disqualify Judge Hill from participating in the civil litigation based on these allegations; his motions were denied. See opinion in Stephens v. Ivey, supra at 407 (2).

A series of attorneys represented defendants in the underlying litigation. During the 15 months prior to trial, defendants were being represented by William Major. Farmer contends that on the eve of trial, he was served with Major’s proposed pre-trial order in which William Campbell was listed along with Major as co-counsel for defendants. Farmer asserts that “Campbell was brought into the case to delay the trial and to obtain influential witnesses for Ivey.” Farmer responded by filing a “Motion to Disqualify William ‘Bill’ ‘Judas’ Campbell as Attorney for [defendants]. . . .” Every reference to Campbell in this lengthy document was by the same designation.

The motion to disqualify was heard by Judge Hill on June 1, 1992, and denied from the bench.

In addition, the court observed: “The subject motion specifically contends of the existence of Hobbs Act violations and the illegal influence of the potential testimony from alleged intended witnesses from the defendant... as we are all aware that a lawyer’s reputation and his expertise is his only stock in trade. These weighty and damaging allegations have been hastily made by counsel for the plaintiff without the benefit of even marginal investigation by plaintiff’s counsel prior to reducing the same to writing and cavalierly making the same a matter of record for public consumption. The court finds this conduct to be less than responsible. The court will not tolerate it, and the court invites counsel for the defendant to file in as expeditious a manner as possible a motion for appropriate sanctions to be directed to and against counsel for the plaintiff and plaintiff himself.”

Campbell moved for sanctions and expenses of litigation predicated under OCGA § 9-15-14, which was heard on September 8. But see Hutchison v. Divorce &c. Law Center, 207 Ga. App. 421 (427 SE2d 784) (1993), for proper procedure. As such a motion was premature, the court refused to entertain the request for sanctions until 45 days after final disposition. It nevertheless ordered: “On its own initiative however, the court, pursuant to the authority of OCGA § 9-11-12 (f) orders stricken from all filed pleadings any and all references to William Bill Judas Campbell. All references to counsel, the parties and any witnesses shall be by their proper names. The responsibility and burden is upon counsel for plaintiff to file amended versions of all affected pleadings within thirty days from today’s date. This matter is to be placed on the next available trial calendar.” (Emphasis supplied.)

Farmer thereupon amended his previously filed motion to disqualify by striking all references to “Judas,” he substituted instead, for each reference to Campbell, “William C. Campbell, a person who is betraying the cause and constitutional quest of racial equality by jumping into this case just before trial to represent [defendants].”

Campbell responded with a motion to strike and request for oral argument. Farmer countered with a document styled, “The one hundred million net worth of [defendants] has corrupted the professional conduct of William ‘Bill’ Major and William ‘Bill’ Campbell.” The motion to strike was heard on March 1, 1993. The following transpired at that hearing:

“THE COURT: ... Is it your contention that by making references to William Campbell, quote, a person who is betraying the cause and constitutional quest of racial equality by jumping in the case just before the trial to represent [defendants], close quote. Is it your contention that is in compliance with this court’s order?

“MR. FARMER: I certainly intend in every way to be in compliance with the court’s order and what I thought that the court meant. . . .

“THE COURT: Let me tell you why I am asking so that you can gauge your response. The court is and I do, in fact, find and I will rule that you’re in contempt of my order, you and your client of September 8, 1992, in that you are in direct violation of that portion of the order that requires all references to counsel, the parties and any witnesses shall be by their proper names. That is a quote from the order. I am going to find you in contempt of that provision of the order unless you can justify your conduct and this is your opportunity to state your justifications.

“MR. FARMER: Your honor, may I have an opportunity to present evidence on this matter before an independent judge?

“THE COURT: No, sir. This is your opportunity to present evidence to me.

“THE COURT: . . . This is your opportunity to make your showing. We are here on the pleadings, and I am asking for your reasons, your justification as to why this is not in contempt of my order.

“MR. FARMER: ... It was not intended in any way to be a contempt or a confrontation or anything of that nature. What I thought that the court meant by its order is that you did not want slang names used when referring to counsel and I thought that what had happened in the motion that you perceived Judas and Bill to be slang names that should not be used in a court pleading and so what I did was ... I removed the slang names of Bill and Judas and inserted a descriptive phrase certainly not a name that I was calling William Campbell.”

The court gave Farmer every opportunity to justify his conduct but his responses remained the same.

The court found that the “phrase inserted by attorney Farmer is immaterial, impertinent and scandalous,” and granted defendants’ motion to strike. It further found: “This court, based upon all the information of record before it, and after having afforded attorney Farmer an opportunity to respond finds that plaintiff and plaintiff’s counsel willfully and purposefully chose a course of conduct designed to violate the definite, certain, clear and literal terms of this court’s order of September 8, 1992. This court, in clear and simple language, admonished all counsel pursuant to OCGA § 9-11-12, that all references to counsel, the parties and any witnesses be by their proper names. This court finds as a matter of fact that plaintiff and plaintiff’s counsel pursuant to their October 1, 1992 filing are in direct and purposeful violation and contradiction of this court’s order of September 8, 1992.”

1. Appellants contend in enumerations of error 1 and 2 that there was insufficient evidence to find them in contempt of court under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The court is authorized under OCGA § 15-1-4 (a) (3) to “inflict summary punishment for contempt ... to cases of: ... (3) [disobedience or resistance by any officer of the courts ... to any lawful . . . order ... or command of the courts.” The court’s directive was clear. The contumacious act was committed in the presence of the court. The evidence was clearly sufficient under the reasonable doubt standard to find appellants in wilful contempt of the court’s order. The fact that the order stated in part that there was “clear and convincing evidence” that “all counsel had actual knowledge of the September 8, 1992, order and there exists no reason to postpone this court’s ruling of this issue of contempt,” does not indicate that the court applied an erroneous standard of proof as to appellants’ guilt. On the evidence before the court, any rational trier of fact could have found appellants guilty under the reasonable doubt standard. See In re Crane, 253 Ga. 667, 669 (2) (324 SE2d 443) (1985). The dignity of the judicial process was at stake in the conduct of Farmer and his client, and the authority of the court was at stake by their judge-baiting refusal to obey the court’s order.

2. Appellants contend they were denied their due process and equal protection rights under the federal and Georgia constitutions in that they: (1) failed to receive adequate notice of the charges; (2) were denied a constitutional hearing; (3) were denied a hearing before an independent trier of fact; (4) were denied an independent prosecutor; (5) were required to prove their innocence; (6) were convicted on an improper standard of proof; and (7) were punished while Campbell’s conduct was condoned.

Appellants were afforded all the due process requirements under the federal and Georgia constitutions as set forth in Dowdy v. Palmour, 251 Ga. 135 (2) (304 SE2d 52) (1983), which applied the Supreme Court’s mandate in Taylor v. Hayes, 418 U. S. 488 (94 SC 2697, 41 LE2d 897) (1974): “A trial judge may find an attorney in contempt of court without trial by jury where the penalty actually imposed does not exceed six months.” (Footnote omitted.) Dowdy, supra at 141 (2) (a). Punishment herein consisted of a $400 fine. “[A] trial judge has the power ... to maintain order in the courtroom, to declare conduct committed in his presence and observed by him to be contemptuous, and, after affording the contemnor an opportunity to speak in his or her own behalf, to announce punishment summarily and without further notice or hearing.” Id. at 141-142 (2) (b). A hearing by another judge is only authorized when, “the announcement of punishment is delayed, and where the contumacious conduct was directed toward the judge or where the judge reacted to the contumacious conduct in such manner as to become involved in the controversy.” Id. at 142 (2) (d). Due process did not require a hearing before another judge.

3. Appellants contend they were subjected to vindictive punishment “for the judge’s personal gain while venting his anger engendered by a long history of hostilities against Millard Farmer.”

Claims concerning the disqualification of Judge Hill were addressed in Stephens v. Ivey, supra at 407 (2).

4. Appellants’ remaining assertions are unfounded, unsupported and will not be considered.

Judgment affirmed.

Cooper and Smith, JJ., concur.

Decided February 22, 1994

Reconsideration denied March 11, 1994

Millard C. Farmer, Jr., pro se.

Michael J. Bowers, Attorney General, Daryl A. Robinson, John C. Jones, Senior Assistant Attorneys General, Heyman & Sizemore, William H. Major, Ellis, Funk, Goldberg, Labovitz & Campbell, William C. Campbell, for appellee.


text:
    A93A1967.
    COTTON STATES MUTUAL INSURANCE COMPANY v. SMELCER.
    (441 SE2d 788)
   Beasley, Presiding Judge.

The issue is whether land which contains a permanently affixed but abandoned structure is “vacant land” for the purposes of coverage under a homeowner’s liability policy.

Smelcer owned a home that was insured under a homeowner’s policy issued by Cotton States Mutual Insurance Company. He and other family members owned a separate parcel of land approximately two-and-one-fourth to three miles from his home on which was located his maternal family’s abandoned old house and an abandoned old country store. During the term of the homeowner’s policy, vandals set fire to the abandoned house and a fireman was killed while responding. The deceased fireman’s father sued Smelcer and the other property owners to recover damages for the wrongful death of his son. Smelcer claimed coverage under his homeowner’s policy, and Cotton States brought this declaratory judgment action to determine whether coverage existed.

The policy provides liability coverage for incidents arising out of premises owned by the insured which come within the definition of “insured location,” to wit (in pertinent part), “vacant land, other than farm land, owned by or rented to an insured. . . .” The term “vacant land” is not defined in the policy.

Cotton States moved for summary judgment, contending that because the separate parcel of land contained a house, it clearly was not “vacant land.” In opposition, Smelcer by affidavit averred that he understood “vacant land” to mean “unoccupied or unused land.” The trial court denied the insurer’s motion, concluding that the term “vacant land” was ambiguous and created an issue of fact as to what a reasonable person in the position of the insured would understand it to mean. Interlocutory review was granted.

The applicable principles are settled. “ ' “Insurance is a matter of contract, and the language used is to be accorded its general and ordinary meaning, bearing in mind that the contract is to be construed in accordance with the intention and understanding of the parties, and, in construing it, the court can go no further than a fair construction of the language used will.permit.” (Cit.) “ ‘(I)t is the understanding of the average policyholder which is to be accepted as a court’s guide to the meaning of words, with the help of the established rule that ambiguities and uncertainties are to be resolved against the insurance company.’ (Cit.)” (Cit.) Interpretation of the provisions of a plain and definite policy of insurance is a matter of law for the courts, and a policy “is not ambiguous even though presenting a question of construction, unless and until an application of the pertinent rules of construction leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties.” (Cit.)’ [Cit.] ‘ “It is the function of the court to construe the contract as written and not to make a new contract for the parties (Cit.) .... An unambiguous contract will be construed to carry out the literal intent of the parties.” (Cit.)’ [Cit.] . . . ‘ “Contracts of insurance, like other contracts(,) are to be construed according to the sense and meaning of the terms which the parties have used, and if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary and popular sense. (Cit.)” (Cits.) Dictionaries supply the “plain, ordinary, and popular sense.’” [Cit.]” Brown v. Peninsular Fire Ins. Co., 171 Ga. App. 507, 508 (320 SE2d 208) (1984).

The term “vacant” is readily understood in its plain, ordinary and popular sense. Webster’s Third New Intl. Dictionary defines it generally as “to be empty, be free.” In Knight v. U. S. Fidelity &c. Co., 123 Ga. App. 833 (182 SE2d 693) (1971), a case involving actions to recover damages for loss under fire insurance policies, this court stated, “[t]he general definition of ‘vacant’ is that it means empty or deprived of contents or without inanimate objects.” Id. at 834-835. Vaughan v. Vaughan, 253 Ga. 76 (317 SE2d 201) (1984), an action to quiet title, suggested that land could be improved yet vacant. It is inapposite because the word was used to distinguish “wild” land. It was not used in the context of insurance coverage, which deals with claimed property.

Couch on Insurance 2d, pp. 477-478, § 44:307 states that a homeowner’s policy “may further cover ‘vacant land’ but clearly such coverage does not extend to land containing buildings as ‘vacant land’ refers to land unoccupied, unused and in the natural state.” Such reasoning is sound. Insurance is a matter of risk assessment and risk taking. The presence of an affixed artificial structure on land, unoccupied, substantially alters the liability risk on the land. This case bears tragic witness to that reality.

Many foreign jurisdictions are in accord. Bianchi v. Westfield Ins. Co., 236 Cal. Rptr. 343 (4th Dist. 1987), provides a comprehensive overview of other states’ treatment of the question of when land is “vacant” for the purpose of homeowner’s insurance coverage. We agree with its summary, that “[t]he beneficial use or improvement of untenanted property renders it nonvacant, particularly if the use has accompanied the introduction of artificial structures.” Id. at 346.

Decided February 22, 1994

Reconsiderations denied March 11, 1994

Parkerson, Shelfer & Connell, William S. Shelfer, Jr., for appellant.

Cathey & Strain, Edward E. Strain III, M. Steven Campbell, McDonald & Cody, Douglas W. McDonald, Sr., P. Gerald Cody, Jr., Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, for appellee.

In this policy, the word “vacant” modifies the word “land,” not “structure.” The policy covers land which is vacant.

The insurer was entitled to summary judgment because Smelcer’s land was not vacant within the meaning of his homeowner’s policy.

Judgment reversed.

Cooper and Smith, JJ., concur.


text:
    A93A1989.
    DANIELS v. DECATUR COUNTY.
    (441 SE2d 790)
   Beasley, Presiding Judge.

In May 1992, Daniels filed a complaint for damages against Decatur County, alleging that as an inmate at the county correctional institute he was underneath a dump truck working on it in October 1991 when the deputy warden negligently drove a front-end loader into the rear end of the dump truck, causing it to slide from a jack and drop onto Daniels.

The county asserted the defense of sovereign immunity under Ga. Const. 1983, Art. I, Sec. II, Par. IX, as amended in 1990, and moved to dismiss on that ground.

In opposition, Daniels filed an insurance policy issued to the county providing commercial and motor vehicle liability coverage during the time in question. Daniels argued that the county’s immunity is governed by Ga. Const. 1983, Art. IX, Sec. II, Par. IX and OCGA § 33-24-51.

The trial court treated the county’s motion to dismiss as one for summary judgment, having considered matters outside the pleadings, and granted it.

1. The 1983 Article I provision, upon which the county relies, extended sovereign immunity to the state and all of its departments and agencies, but provided that the defense of sovereign immunity was waived to the extent of any liability insurance provided. It additionally stated that sovereign immunity of the state or any of its departments and agencies could be waived further by Act of the General Assembly specifically providing that sovereign immunity was waived and the extent of the waiver.

By an amendment in 1990, which became effective on January 1, 1991, this provision was revised to extend sovereign immunity to all state departments and agencies, regardless of any insurance. Donaldson v. Dept. of Transp., 262 Ga. 49 (414 SE2d 638) (1992).

Subparagraph (a) of the amendment authorizes the General Assembly to waive the state’s sovereign immunity from suit by enacting a State Tort Claims Act for the making, handling, and disposition of actions or claims against the state and its departments, agencies, officers, and employees. Subparagraph (e) provides, “The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.”

In 1992, the General Assembly enacted the Georgia Tort Claims Act. OCGA § 50-21-20 et seq. Subject to various exceptions and limitations, the state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment. OCGA § 50-21-23 (a). As used in the Act, “State” does not include counties, municipalities, school districts or other units of local government. OCGA § 50-21-22 (5).

On the other hand, the Article IX provision, upon which the plaintiff stands, states: “The General Assembly may waive the immunity of counties, municipalities, and school districts by law.” OCGA § 33-24-51 (a) authorizes a municipal corporation, a county, or any other political subdivision of this state in its discretion to secure and provide insurance to cover liability for damages arising by reason of ownership, maintenance, operation, or use of any motor vehicle. Subsection (b) provides that whenever such an entity provides this liability insurance coverage, its governmental immunity shall be waived to the extent of the insurance purchased. Ekarika v. City of East Point, 204 Ga. App. 731, 732 (420 SE2d 391) (1992). The Article IX provision has not been amended, and the statute has not been expressly repealed.

In Toombs County v. O’Neal, 254 Ga. 390 (330 SE2d 95) (1985), the plaintiff brought a negligence action against a county after falling in the lobby of the county jail. Although the county had in effect a liability policy affording coverage under these circumstances, it moved to dismiss on the basis of sovereign immunity. Notwithstanding the fact that counties have been generally recognized as political subdivisions of the state rather than state agencies or departments, the Supreme Court held that under the Article I provision Toombs County had waived its defense of sovereign immunity, by providing liability insurance protection for the claim in that case.

Decided February 22, 1994

Reconsideration denied March 11, 1994

Beauchamp & Associates, Robert M. Beauchamp, for appellant.

The county argues that the 1990 amendment to the Article I provision divested the General Assembly of authority under the Article IX provision to waive the immunity of counties based on motor vehicle liability insurance, thereby abrogating OCGA § 33-24-51. However, as recognized in Toombs County, supra at 392 (2), Article IX constitutes a separate grant of authority to the General Assembly. The Supreme Court states in Hiers v. City of Barwick, 262 Ga. 129, 131, n. 1 (414 SE2d 647) (1992), in applying the Toombs holding to municipalities, “We do not hold here that the immunity of the state, counties and municipalities [is] co-extensive. The Constitution provides separately in Art. IX, Sec. II, Par. IX for additional legislative waiver of the immunity of counties, school districts and municipalities.”

Moreover, assuming Article I applies, subparagraph (e) of the 1990 amendment empowers the General Assembly to waive the sovereign immunity of the state and its departments and agencies by an Act which specifically provides that sovereign immunity is thereby waived and the extent of such waiver. Subparagraph (e) does not limit such “Act” to the State Tort Claims Act. OCGA § 33-24-51, part of a 1960 Act (Ga. L. 1960, pp. 289, 673-674; Code Ann. § 56-2437), satisfies the criteria required by subparagraph (e).

2. The county argues that even if OCGA § 33-24-51 remains in effect, the county is still entitled to summary judgment, because a front-end loader is not a motor vehicle as contemplated by the county’s insurance policy. However, it still has not shown that it was entitled to summary judgment with respect to the dump truck. In reliance upon repealed and extant parts of the definitional section of the Georgia Motor Vehicle Accident Reparations Act (OCGA § 33-34-2), the county argues that the accident did not arise by reason of ownership, maintenance, operation or use of the dump truck. The county’s reliance upon this Act is misplaced because of variations between it and OCGA § 33-24-51 (a).

Judgment reversed.

Cooper and Smith, JJ., concur.

Kirbo & Kendrick, David A. Kendrick, for appellee.