author: McMurray, Presiding Judge. Beasley, Presiding Judge,

text:
    A93A0606.
    JEFFERSON v. THE STATE.
    (434 SE2d 814)
   McMurray, Presiding Judge.

Defendant Jefferson was convicted of 16 counts of armed robbery, five counts of rape, ten counts of aggravated assault, three counts of aggravated sodomy, and 23 other offenses for which he was sentenced to 24 life terms and 375 years to run consecutively. The convictions and judgment were affirmed on appeal, in which the only issue was the validity of the search and seizure which yielded incriminating evidence. Jefferson v. State, 199 Ga. App. 594 (405 SE2d 575) (1991).

Thereafter, defendant filed a pro se “petition to correct void sentences” in the trial court. Denial of the petition was reversed because the trial court did not hold a pre-sentence hearing, as required by OCGA § 17-10-2 (a). Jefferson v. State, 205 Ga. App. 687 (2) (423 SE2d 425) (1992).

Upon remand, the trial court reimposed the same sentences defendant had previously been given. This pro se appeal followed. Held:

1. Defendant’s first enumeration of error contends that the trial court erred in sentencing him without the assistance of counsel to present and argue mitigating evidence. Since Gideon v. Wainwright, 372 U. S. 335 (83 SC 792, 9 LE2d 799) (1963), 30 years ago, it has been constitutionally recognized that a person who stands charged with crime cannot give adequate voice to his position without the right to be heard by counsel. Thus it is settled that a criminal defendant is entitled to counsel at sentencing under the Sixth Amendment (through the Fourteenth Amendment), whenever the sentencing proceeding is more than ministerial, because it is a critical stage in the process. Green v. State, 194 Ga. App. 343, 346 (7) (390 SE2d 285) (1990). Jefferson’s sentencing clearly was more than ministerial because the court had the discretion to determine an appropriate penalty.

Prior to the pre-sentence hearing on remand, defendant submitted to the court a lengthy handwritten document entitled “Legal Argument for Resentencing,” arguing in favor of a lesser sentence than originally imposed, a copy of a brief filed by him in support of his habeas corpus action in another superior court, and a cover letter. In the letter, defendant stated that he is an innocent man wrongly convicted and that “[t]he purpose of submitting a copy of the brief to you is for the sole purpose of ‘mitigation evidence.’ ” In the habeas corpus brief, defendant argued that the evidence was insufficient to support the convictions, and he alleged trial error, prosecutorial misconduct, and ineffective assistance of trial counsel. As to the latter, he complained that counsel did not renew a defense motion for change of venue based on pretrial publicity and that counsel did not question police concerning why fingerprints of the perpetrator, left at crime scenes before defendant was arrested and charged, were not sent to the Federal Bureau of Investigation for identification. Apparently, the petition for habeas corpus remained pending at the time of the resentencing hearing.

Defendant’s trial counsel appeared at the presentence hearing and is shown on the transcript as representing him. However, immediately after the beginning of the resentencing hearing, defendant asserted that he had no attorney, and in response to the trial court’s observation that he had had counsel at trial, defendant indicated that he had fired his trial attorney. Defendant stated that he wanted a different attorney appointed to represent him to present evidence and argue the legal issues related to the multiple sentences. This colloquy continued for some time with the trial court informing defendant that he was not entitled to counsel of his own choice. The prosecuting attorney states in reference to defendant and his trial counsel that “[t]his man has his attorney with him today. ...” A fair reading of the transcript shows that defendant’s trial counsel continued to represent him. Indeed, the presence of defendant’s trial counsel at the resentencing hearing would be an anomaly if he was no longer representing defendant.

We must address the implications of defendant’s refusal to cooperate with his trial counsel and announcement that he had discharged him. A defendant may not refuse to cooperate with appointed counsel and then claim he was not effectively represented. Rivers v. State, 250 Ga. 303, 307 (6) (298 SE2d 1). “[A]ny act of defendant which effectively terminated his counsel would not have had the effect of ‘triggering’ a duty upon the part of the trial court to appoint another attorney for defendant. .. .” Durham v. State, 185 Ga. App. 163,164 (1) (363 SE2d 607). If the defendant does not have a good reason for discharging his court-appointed attorney, the trial court does not err in requiring him to choose between representation by that attorney and proceeding pro se. Durham v. State, 185 Ga. App. 163, 164 (1), supra; Mock v. State, 163 Ga. App. 320 (293 SE2d 525). While the cases cited for these principles involve appointed counsel, we see no reason the underlying principles should not be equally applicable where counsel is retained or pro bono. The question is one of whether defendant’s conduct amounts to a waiver of his right to counsel. In the resentencing hearing in the case sub judice, defendant appeared with counsel and was informed that he was not entitled to appointment of counsel of his own choosing, yet he chose to refuse the services of his trial counsel. Under these circumstances it was within the discretion of the trial court to view defendant’s conduct as amounting to a waiver of counsel. Mercier v. State, 203 Ga. App. 494, 495 (2) (417 SE2d 430). Thus, a notation on the sentence sheet that defendant appeared pro se is consistent with the posture he assumed at the sentencing hearing.

The pending claim of ineffective assistance at trial did not amount to a valid reason for defendant to discharge his trial counsel and demand appointment of a different attorney. The effectiveness claim created no conflict of interest between defendant and his trial counsel relevant to the issues addressed at the sentencing hearing. In McGuire v. State, 185 Ga. App. 233, 237-238 (3) (363 SE2d 850), this court held that there was no harmful error in appointing that defendant’s trial counsel, against whom an ineffective assistance of counsel claim was pending, to represent him on appeal to this court. As in McGuire, none of the issues arising from the ineffectiveness claim are involved in the matter on appeal and the trial court recognized that those issues were pending before another superior court and not the court below from which this appeal emanated. There was no violation of the ethical concerns which form the predicate of Castell v. Kemp, 254 Ga. 556 (331 SE2d 528). If there was no harmful error in appointing trial counsel to represent the defendant on appeal in McGuire, there is none here. Also, see such recent cases as Berry v. State, 262 Ga. 614, 615 (3) (422 SE2d 861) and Nixon v. State, 255 Ga. 656, 657, fn. 1 (340 SE2d 7), where there were claims of ineffective assistance at trial pending against appellate counsel.

Furthermore, the analysis adopted in Amadeo v. State, 259 Ga. 469, 471 (2) (384 SE2d 181) is not applicable to the case sub judice. Amadeo requires the trial court to consider a defendant’s request to appoint the counsel of his preference, where the statement of preference is supported by objective considerations of the consequence there involved, and where there are no countervailing considerations of comparable weight. However, Amadeo must be distinguished on the facts since it is applicable only where a defendant has expressed a preference for a particular attorney. See id. at 470. The defendant in the case sub judice is not concerned with acquiring representation by an attorney in whom he has developed a relationship of trust and confidence, but is only concerned with replacing an attorney with whom he is displeased. Defendant not having expressed any preference as to whom he wants appointed as replacement counsel, the request for appointment of a different attorney is governed by principles which predate Amadeo.

Even if the Amadeo analysis is applicable to these facts, the pending ineffective assistance claim against trial counsel is not an “objective consideration” of sufficient weight to require appointment of a different attorney. The argument that defendant’s claim of ineffectiveness precludes the continued representation by trial counsel is not supported by any argument or citation of authority. Nor can this premise be reconciled with our holding in McGuire v. State, 185 Ga. App. 233, 237 (3), supra. While the charges of ineffectiveness raised by defendant against trial counsel may affect the personal relationship between these two men, it must be recalled that the Sixth Amendment does not guarantee defendant a meaningful relationship with his attorney. Morris v. Slappy, 461 U. S. 1, 14 (103 SC 1610, 75 LE2d 610).

The Amadeo analysis also requires consideration of any countervailing considerations. Therefore, we must also consider the adverse effects of requiring appointment of substitute counsel whenever a defendant raises an ineffectiveness of counsel claim and demands a change of counsel. Since this may occur immediately before or during trial, requiring delay while new counsel becomes acquainted with the case, such a procedure places effective control of the judicial process in the hands of a defendant and is incompatible with the efficient administration of our criminal justice system.

2. The second enumeration of error contends that the trial court erred in sentencing him to 24 life sentences since this deprives him of a due process right to be given a determinate sentence. Defendant’s argument is predicated on the supposition that under OCGA § 17-10-1 (a) he must be given a determinate sentence for a specific number of years. However, in Jefferson v. State, 205 Ga. App. 687, 688 (2), supra, we held that “OCGA § 17-10-1 (a) (1) authorizes the trial judge to impose sentence ‘within the minimum and maximum prescribed by law as the punishment for the crime.’ ” Thus, the imposition of the maximum punishment of life imprisonment for 24 of the offenses of which defendant was convicted was not error.

3. “Contrary to the defendant’s assertions, the trial court did not err in imposing consecutive sentences. ... It is within the trial court’s discretion to sentence consecutively. OCGA § 17-10-10; Duckworth v. State, 246 Ga. 631 (2) (272 SE2d 332) (1980); Spivey v. State, 253 Ga. 187 (5) (319 SE2d 420) (1984), cert. den., 105 SC 816 (1985); Welch v. State, 254 Ga. 603 (2) (331 SE2d 573) (1985).” Hambrick v. State, 256 Ga. 148, 149-150 (3) (344 SE2d 639). There is a broad discretion in sentencing vested in trial courts and it is the duty of the courts to exercise that discretion as to all aspects of the sentences they impose. A trial court’s use of a mechanical sentencing formula or policy as to any portion of a sentence amounts to a refusal to exercise its discretion and is therefore an abdication of judicial responsibility. Cottingham v. State, 206 Ga. 197, 199 (3) (424 SE2d 794).

Nor is any denial of due process involved. Prohibited behavior is described in various criminal statutes, along with possible punishments. Notice that the specific punishment will be determined as a matter of discretion upon consideration of the facts and circumstances of each case is also provided via statute.

Judgment affirmed.

Pope, C. J., Birdsong, P. J., Andrews, Blackburn and Smith, JJ., concur. Beasley, P. J., and Cooper, J., dissent. Johnson, J., not participating.

Beasley, Presiding Judge,

dissenting.

I respectfully dissent to Division 1 of the majority opinion and would hold that the case be remanded for resentencing. I would not reach the remaining divisions because they relate to the sentences imposed.

Although Jefferson’s trial counsel appeared at the pre-sentence hearing and is shown on the transcript as representing him, it is not clear whether he was appointed by the court or was acting pro bono. However, Jefferson stated that he had asserted claims of ineffective assistance of counsel against him; that he had initiated this proceeding for a sentence hearing on his own; that trial counsel had “come down there [to prison] to see me” (apparently after reversal of the judgment for lack of a sentence hearing) but that Jefferson had “fired” him because he had gotten him 24 life sentences and in his own opinion appellant could have received less time “without even putting in a plea”; that counsel had not consulted with him concerning matters to be considered in the pre-sentence .hearing; and that he wanted a different attorney appointed to represent him to present evidence and argue the legal issues related to the multiple sentences.

Trial counsel stated that the habeas court had conducted a hearing and had found Jefferson’s ineffective assistance claims to be “totally without merit, off base . . . and ridiculous.” He said: “I am not going to stand up hear and allow him to make such ridiculous statements.”

Jefferson stated that his claims had not been ruled on by the habeas court, and there is nothing in the record in this case showing the final disposition of the habeas corpus proceeding or when it occurred.

The sentencing court noted that the ineffective assistance claim was before another court but commented that trial counsel had represented Jefferson as best he could under the circumstances, that he had done everything the law required him to do, and that Jefferson was not entitled to have another attorney appointed for sentencing. Jefferson urged that he was unable to present mitigating evidence without the assistance of counsel. The court impliedly denied the request. Counsel was not asked, nor did he offer, any evidence or argument in extenuation or mitigation on defendant’s behalf.

Instead, based on a consideration of the written material submitted by Jefferson and the report of the pre-sentence investigation by the probation department, the court reimposed the same sentences Jefferson had previously been given. The sentence sheet records that the defendant appeared pro se. This pro se appeal followed.

As recognized by the majority, Jefferson’s sentencing was more than ministerial, and he was entitled to counsel at sentencing under the Sixth Amendment.

He asserted the right to counsel at what in this instance qualifies as “the first opportunity,” at the outset of the sentencing hearing, although he could have moved the court in advance of the hearing to appoint counsel. He did, however, notify the court of the pending habeas corpus in which the effectiveness of counsel was at issue, before the day of sentencing. See Dill v. State, 193 Ga. App. 213, 214 (387 SE2d 424) (1989).

He did not waive counsel by filing a habeas corpus petition alleging ineffective assistance of counsel. Nor did he waive counsel by refusing his services for sentencing purposes, as the two were then adverse parties in pending litigation involving representation itself, as demonstrated by the absence of a final disposition of the habeas corpus case, by counsel’s expressed views on the matter of defendant’s complaint against him, and by the fact that defendant pro se had won a reversal of the sentences on the procedural deficiency in the sentencing, which counsel had overlooked. Jefferson v. State, 205 Ga. App. 687 (423 SE2d 425) (1992).

Of course, if counsel is not either unable or unwilling to represent a defendant, the defendant may not refuse to cooperate with appointed counsel (counsel here may be pro bono rather than appointed) and then claim he was not effectively represented. Rivers v. State, 250 Ga. 303, 307 (6) (298 SE2d 1) (1982). If the defendant does not have good reason for discharging his court-appointed attorney, the court does not err in requiring him to choose between representation by that attorney and proceeding pro se. Durham v. State, 185 Ga. App. 163, 164 (1) (363 SE2d 607) (1987); Mock v. State, 163 Ga. App. 320 (293 SE2d 525) (1982) (no “good and lawful reason” for defendant’s discharging of counsel). The Sixth Amendment does not guarantee “ ‘a meaningful relationship’ ” between the defendant and counsel. Morris v. Slappy, 461 U. S. 1, 14 (103 SC 1610, 75 LE2d 610) (1983).

Defendant did not have counsel for sentencing, in effect, as his original trial counsel spoke only to the issue of the habeas corpus claim of ineffective assistance. At the outset of the proceeding, the court invited defendant and trial counsel to be heard on the issue of sentence, but counsel did not address it, no doubt in part because defendant had refused his representation. Defendant was compelled to proceed pro se, and the court heard no evidence or argument regarding sentence but relied instead on the documents which had been submitted in advance by defendant and the pre-sentence report. Nor did the court receive evidence or counsel-assisted argument regarding the ineffective assistance claims insofar as they related to the issue of entitlement to other counsel for sentencing. Such an inquiry could not proceed anyway unless other counsel were appointed, because counsel cannot act as both counsel and witness. Castell v. Kemp, 254 Ga. 556 (331 SE2d 528) (1985); Berry v. State, 262 Ga. 614, 615 (3) (422 SE2d 861) (1992). Defendant had demonstrated ineffectiveness, however, insofar as sentence was concerned: counsel had not objected to sentencing without a proper hearing, and the lack of a hearing caused the reversal of the sentences.

Whether to appoint substitute counsel addresses itself to the sound discretion of the trial court. Newby v. State, 161 Ga. App. 805, 806 (2), 807 (288 SE2d 889) (1982). What is at issue here is the appointment of counsel to represent a defendant who has discharged pro bono counsel or counsel appointed by the court. In either event the court, without a hearing or evidence on the effectiveness challenge, dismissed it as unfounded insofar as it affected his right to other counsel. This case differs from McGuire v. State, 185 Ga. App. 233, 237 (3) (363 SE2d 850) (1987), in that it relates to a phase of the trial in which counsel did not properly represent defendant; McGuire relates to the direct appeal which carved out and saved for another day the issue of ineffectiveness at trial. In Jefferson’s case, he had already demonstrated ineffectiveness in a crucial respect.

Decided July 16, 1993 —

Reconsideration denied July 30, 1993 —

John A. Jefferson, pro se.

In Amadeo v. State, 259 Ga. 469, 471 (2) (384 SE2d 181) (1989), the Supreme Court held that the trial court had abused its discretion in denying defendant’s request that the court appoint trial counsel to represent defendant in the retrial of a death penalty case. See also Fleming v. State, 246 Ga. 90, 91 (1) (270 SE2d 185) (1980) (as to conflict of interest). This case is more factually akin to Amadeo than the other cited cases since the attorney-client relationship between defendant and his trial attorney had ended after his direct appeal. Citing Harris v. People, 567 P2d 750, 759 (104 Cal. Rptr. 318) (1977), the Court in Amadeo held that “while we reaffirm today the basic holding . . . that the court’s discretion in the appointment of counsel is not to be limited or constrained by a defendant’s bare statement of personal preference, we hold that when that statement of preference, timely made, is supported by objective considerations of the consequence here involved, and where there are no countervailing considerations of comparable weight, it is an abuse of sound judicial discretion to deny the defendant’s request to appoint the counsel of his preference.” 259 Ga. at 471.

Here the “objective considerations of the consequences” of forcing defendant to proceed with trial counsel or pro se mandated the appointment of other counsel, just as such an examination of the circumstances in Amadeo v. State, supra, required the appointment of prior counsel, as was sought. See generally 21A AmJur2d, Criminal Law, §§ 982-987.

Defendant was entitled to other counsel so as to be accorded his right to “reasonably effective assistance of counsel,” in the words of Rivers v. State, 250 Ga. 303, 308 (6) (298 SE2d 1) (1982). See also Cribbs v. State, 204 Ga. App. 109 (1) (418 SE2d 405) (1992). The case should be remanded for resentencing under OCGA § 17-10-2 (a). Brinson v. State, 201 Ga. App. 80, 81 (2) (410 SE2d 50) (1991). At the proceeding, defendant should be represented by counsel against whom no adverse proceedings are pending, unless defendant waives counsel.

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

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A93A0628.
    SOUTHERN FIRE & CASUALTY INSURANCE COMPANY v. NORTHWEST GEORGIA BANK et al. SOUTHERN FIRE & CASUALTY INSURANCE COMPANY v. BELL et al.
    A93A0629.
    (434 SE2d 729)
   McMurray, Presiding Judge.

The estate of Bell (“estate”) and Northwest Georgia Bank (“bank”) brought suit against Southern Fire & Casualty Company (“Southern Fire”) to collect insurance covering business premises occupied by John R. Woodruff and W. W. Auto Parts (“Woodruff”). Woodruff was named as a party defendant and he cross-claimed against Southern Fire seeking insurance proceeds and bad faith penalties under OCGA § 33-4-6.

The estate and the bank moved for summary judgment. Southern Fire moved for summary judgment with regard to Woodruff’s bad faith penalties claim. We summarize the evidence adduced upon Southern Fire’s motion as follows: Immediately after Woodruffs business premises caught on fire, an investigation was commenced. The investigators concluded that arson was the likely cause. Their conclusion was based on the pouring of flammable liquids in the business office, as well as a disengaged alarm system. Evidence of motive included $24,000 in the business’ short-term liabilities. Evidence of opportunity included the fact that Woodruff was the last person to leave the building before it caught on fire. The grand jury also concluded that arson was the cause of the fire, as it returned an indictment against Woodruff.

The trial court granted summary judgment to the estate and the bank; it denied Southern Fire’s motion with regard to Woodruff’s bad faith penalties claim. Southern Fire appealed. In the meantime, Southern Fire settled with the estate and the bank. Thus, the primary issue to be decided on appeal is the issue of bad faith vel non. Held:

1. Southern Fire’s motion to strike the references in Woodruffs brief to the deposition of Thomas C. Russe is denied. The trial court did not abuse its discretion in ordering that the record be supplemented with the deposition of Russe. OCGA § 5-6-41 (f).

2. “To support a cause of action under OCGA § 33-4-6, the insured bears the burden of proving that the refusal to pay the claim was made in bad faith. Interstate Life &c. Ins. Co. v. Williamson, 220 Ga. 323, 324 (2) (138 SE2d 668) (1964); Royal Ins. Co. v. Cohen, 105 Ga. App. 746, 747 (125 SE2d 709) (1962). ‘A defen[s]e going far enough to show reasonable and probable cause for making it, would vindicate the good faith of the company as effectually as would a complete defense to the action.’ Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 765 (4) (12 SE 18) (1890); Interstate Life &c. Ins. Co. v. Williamson, 110 Ga. App. 557, 559 (1) (139 SE2d 429) (1964). ‘Penalties for bad faith are not authorized where the insurance company has any reasonable ground to contest the claim and where there is a disputed question of fact.’ Fortson v. Cotton States Mut. Ins. Co., 168 Ga. App. 155, 158 (1) (308 SE2d 382) (1983).” Central Nat. Ins. &c. v. Dixon, 188 Ga. App. 680, 683 (5) (373 SE2d 849).

Decided June 28, 1993 —

Reconsideration denied July 30, 1993 —

Leitner, Warner & Moffitt, George Carpenter, Stuart F. James, for appellant.

Stophel & Stophel, Mark Warren, Clifton M. Patty, Jr., for appellees.

We think the evidence adduced upon Southern Fire’s motion for summary judgment is sufficient to demonstrate that Southern Fire had reasonable grounds to contest Woodruff’s claim. The mere fact that Woodruff may not have actually set the fire or that the investigation was not flawless is of no consequence. Southern Fire demonstrated that it did not refuse payment on the policy for “frivolous” or “unfounded” reasons. See Fortson v. Cotton States Mut. Ins. Co., supra at 157. After all, “[a]n insurance company can prevail in an arson defense based solely on circumstantial evidence if it shows that the fire was of incendiary origin and that the plaintiff had both the opportunity and motive to have the fire set. [Cits.]” Id. at 158. Southern Fire was, therefore, entitled to summary judgment on the issue of bad faith penalties. See Johnson v. Southeastern Fidelity Ins. Co., 178 Ga. App. 431, 436 (5) (343 SE2d 709). See also Fortson v. Cotton States Mut. Ins. Co., supra. The trial court erred in ruling otherwise.

Judgments reversed.

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


author: Smith, Judge.

text:
    A93A0680.
    RICHARDSON v. HENNLY. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF VALDOSTA, INC. v. RICHARDSON.
    A93A0807.
    (434 SE2d 772)
   Smith, Judge.

Bonnie Richardson filed suit in three counts against her former employer, First Federal Savings & Loan Association of Valdosta, Inc., alleging violation of the Georgia Equal Employment for the Handicapped Code, OCGA § 34-6A-1 et seq., battery, and intentional infliction of emotional harm. She also named as a defendant her former coworker, J. R. Hennly, Jr., against whom she alleged claims of battery, intentional infliction of emotional distress, and interference with contractual relations. Both defendants moved for summary judgment, and their motions were heard separately by different judges. Hennly’s motion was granted as to the claims of battery and intentional infliction of emotional distress and denied as to the claim of interference with contractual relations. First Federal’s motion was denied. In Case No. A93A0680 Richardson appeals from the grant of partial summary judgment to Hennly. Case No. A93A0807 is First Federal’s appeal from the denial of its motion, taken pursuant to our grant of its application for interlocutory review. The two cases have been consolidated in this opinion.

The record reveals that Richardson had been working as a receptionist at First Federal for a number of years when Hennly, an administrative officer, began working at her branch. Richardson’s work station was in the lobby of First Federal, and Hennly worked in an office approximately 30 feet from her desk. Hennly had been a pipe smoker for a number of years, and continued to smoke his pipe at work. Richardson immediately began to have difficulty with Hennly’s pipe smoke, to which she apparently had an allergic reaction that caused nausea, stomach pain, loss of appetite, loss of weight, headaches, and anxiety. She discussed this problem with her superiors, and several air cleaners were purchased, which were placed in the interior of Hennly’s office and adjacent to his door. For a time Hennly switched to cigarettes, which did not bother Richardson as much, but he resumed smoking his pipe, stating that he wished to avoid becoming addicted to cigarettes. Richardson was twice hospitalized because of her adverse reactions. Shortly after Richardson returned to work from her second hospitalization her employment was terminated, primarily for excessive absenteeism.

In opposition to the motions for summary judgment Richardson presented medical evidence attributing her adverse reactions to the pipe smoke. This evidence was not rebutted. It is uncontroverted that Hennly was aware of Richardson’s adverse reactions to his pipe smoke and that she was twice hospitalized. The evidence is in conflict regarding whether Hennly ever smoked anywhere at work other than in his office; whether he intentionally smoked around Richardson to annoy her; and whether he made teasing or offensive remarks regarding his smoking.

Case No. A93A0680

In granting partial summary judgment to Hennly the trial court did not state its reasons. Because a judgment right for any reason will be affirmed, Rowell v. Parker, 192 Ga. App. 215, 216 (2) (384 SE2d 396) (1989), we must determine whether any basis exists for the grant of partial summary judgment to Hennly.

1. In his motion for summary judgment, Hennly asserted that Richardson’s claims were covered under the Workers’ Compensation Act. Since OCGA § 34-9-11 provides that the Act is the exclusive remedy for covered injuries, Hennly argued that Richardson was barred from bringing this tort action. On appeal, Richardson contends that to the extent that the trial court may have based the grant of partial summary judgment to Hennly on the bar imposed by OCGA § 34-9-11, it was error.

OCGA § 34-9-1 (4) provides in pertinent part that the term “injury” as used in the Act shall not include an “injury caused by the willful act of a third person directed against an employee for reasons personal to such employee.” Georgia courts have construed this to mean that when an employee is injured on the job from causes stemming from the animosity of another, the injury will nevertheless be compensable under the Act if “the animosity arose from reasons related to the employee’s performance of [her] work-related duties. [Cits.] Conversely, if the animosity giving arise to the [injury] stemmed from reasons not related to the injured employee’s performance of his work, then his injuriés will not be considered compensable under the Act. [Cits.]” Lindsey v. Winn Dixie Stores, 186 Ga. App. 867, 868 (1) (368 SE2d 813) (1988).

Hennly had been a pipe smoker long before he was transferred to the branch where Richardson worked. Even assuming that Richardson is able to show that Hennly intentionally smoked his pipe around her in order to harm her and that she was injured as a result of Hennly’s animosity, no evidence in the record suggests that the reasons for Hennly’s alleged animosity were in any way related to Richardson’s job performance or that they were anything but “personal to” Richardson within the meaning of OCGA § 34-9-1 (4). Consequently, we conclude that this action is not barred by OCGA § 34-9-11. Lindsey, supra.

2. Hennly moved for summary judgment as to Richardson’s claim of battery on the ground that pipe smoke is an immaterial substance incapable of battering another. Richardson maintains the trial court erred by granting partial summary judgment to Hennly on this claim.

Our courts have recognized an interest in the inviolability of one’s person and, along with most other jurisdictions, have followed the common law rule that any unlawful touching is actionable as a battery. Haile v. Pittman, 194 Ga. App. 105, 106 (3) (389 SE2d 564) (1989). In Georgia, a civil battery claim may be brought pursuant to OCGA § 51-1-13 or § 51-1-14. See generally Joiner v. Lee, 197 Ga. App. 754, 756 (1) (399 SE2d 516) (1990). Such a cause of action will lie even in the absence of direct physical contact between the actor and the injured party: “ ‘The unlawful touching need not be direct, but may be indirect, as by the precipitation upon the body of a person of any material substance.’ . . . [Cit.]” Hendricks v. Southern Bell Tel. &c. Co., 193 Ga. App. 264, 265 (387 SE2d 593) (1989). In Hendricks the principle is stated in the form of a quotation from Christy Bros. Circus v. Turnage, 38 Ga. App. 581 (2) (144 SE 680) (1928), a case involving the tort of negligent infliction of emotional distress. Christy Bros, was subsequently overruled by the Supreme Court in Ob-Gyn Assoc. &c. v. Littleton, 259 Ga. 663, 666 (2) (A) (386 SE2d 146) (1989).

The principle itself, however, has long been the common law rule as to battery. “Since the disappearance of the distinction between trespass and case, it is no longer important that the contact is not brought about by a direct application of force such as a blow, and (if other elements of the cause of action . . . are satisfied) it is enough that the defendant sets a force in motion which ultimately produces the result.” Prosser & Keeton, The Law of Torts, § 9, p. 40 (5th ed. 1984). See also Restatement (Second) Torts, § 18, comment c. We agree with Richardson, therefore, that the overruling of Christy Bros., supra, does not change the common law as to battery in this regard.

We note that Richardson has not alleged that any or all smoke with which she came into contact would constitute battery. Instead, she has alleged that Hennly, knowing it would cause her to suffer an injurious reaction, intentionally and deliberately directed his pipe' smoke at her in order to injure her or with conscious disregard of the knowledge that it would do so. We decline to hold that this allegation must fail as a matter of law. We are not prepared to accept Hennly’s argument that pipe smoke is a substance so immaterial that it is incapable of being used to batter indirectly. Pipe smoke is visible; it is detectable through the senses and may be ingested or inhaled. It is capable of “touching” or making contact with one’s person in a number of ways. Since no other element of the tort has been conclusively negated, Hennly has not shown as a matter of law that he is entitled to judgment. Moreover, a jury question remains regarding whether Hennly actually directed his pipe smoke at Richardson. We conclude, therefore, that the trial court erred in granting summary judgment in favor of Hennly on the battery claim. See generally Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

3. We likewise conclude that the trial court erred in granting summary judgment to Hennly on Richardson’s claim for infliction of emotional harm.

When a claim for infliction of emotional harm arises from negligent conduct, recovery is allowed only where there has been some impact on the plaintiff that results in a physical injury. But if, as here, the claim alleges intentional conduct resulting in emotional harm, it is not required that the plaintiff show an impact. Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992). Although the law is still developing as to the tort of emotional distress and its ultimate limits have not yet been determined, the cases thus far decided have found liability for intentional infliction of emotional harm when the defendant’s conduct has been extreme and outrageous. Moses v. Prudential Ins. Co. &c., 187 Ga. App. 222, 224 (369 SE2d 541) (1988). See Kornegay v. Mundy, 190 Ga. App. 433, 434 (379 SE2d 14) (1989). Assuming Richardson’s allegations to be true, the issue presented is, therefore, whether the conduct alleged is sufficiently extreme or outrageous to support recovery.

This issue presents a question of law for the trial court. Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 706 (2) (409 SE2d 835) (1991). Factors which may contribute to outrageousness and egregiousness include the existence of a special relationship in which one person has control over another, see Anderson v. Chatham, 190 Ga. App. 559, 567 (8) (379 SE2d 793) (1989); the actor’s awareness of the victim’s particular susceptibility, see Williams v. Voljavec, 202 Ga. App. 580, 582 (415 SE2d 31) (1992); and the severity of the harm resulting from the conduct. Anderson, supra. Some claims will be found not to rise to the requisite level of outrageousness and egregiousness as a matter of law. Gordon v. Frost, 193 Ga. App. 517, 521 (388 SE2d 362) (1989). Others, in which it is shown that reasonable persons could differ as to whether the conduct was sufficiently outrageous and egregious, must be decided by a jury. Id.

We find this case to fall in the latter category. It arose in a workplace setting, in which the element of control is present. “[B]y its very nature, [the employee-employer relationship] provides a captive victim who may fear reprisal for complaining, so that the injury is exacerbated by repetition, and it presents a hierarchy of structured relationships [that] cannot easily be avoided.” Coleman v. Housing Auth. &c., 191 Ga. App. 166, 169 (1) (381 SE2d 303) (1989). Moreover, it is undisputed that Hennly was aware of Richardson’s particular sensitivity to his pipe smoke and that Richardson’s reaction was severe, including hospitalization. Although it is still true that one “must necessarily be expected and required to be hardened to . . . occasional acts that are definitely inconsiderate and unkind” without legal intervention, Kornegay, supra at 435, we conclude that from the factors enumerated, as well as the allegedly repetitive and continuing nature of the conduct, Coleman, supra at 169, a reasonable person could find the conduct outrageous and egregious. Accordingly, a jury must determine this threshold question, as well as the fact question of whether Hennly deliberately or recklessly and wantonly directed his conduct at Richardson.

4. Given our reversal of the grant of summary judgment to Hennly, we need not address the issues raised by Richardson in two enumerations of error regarding the trial court’s treatment of her motion to withdraw admissions.

Case No. A93A0807

Our holdings in Divisions 1-3, supra, dispose as well of First Federal’s contentions in Case No. A93A0807, with two exceptions.

5. In addition to the contention raised below by Hennly as to the battery claim, First Federal maintains that Richardson cannot support her cause of action against it for knowingly acquiescing in a battery, because the record shows without dispute that Hennly smoked only in his enclosed office 30 feet away from Richardson. Regardless of whether Hennly “blew” smoke at Richardson on one or more occasions, the evidence is in sharp conflict as to whether he smoked his pipe and deliberately approached her or otherwise directed his smoke at her at times and places which he knew would result in harm to her. We do not find Richardson’s testimony to be contradictory in any material regard, necessitating the application of the principle set forth in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30-31 (2) (343 SE2d 680) (1986).

6. First Federal also asserts error in the trial court’s denial of its motion for summary judgment on Richardson’s claim that it violated the Georgia Equal Employment for the Handicapped Code (GEEHC), OCGA § 34-6A-1 et seq.

(a) It first argues that as a matter of law, Richardson fails to meet the definition of “handicapped” under the statute because of her admission that her sensitivity to pipe smoke was unlikely to cause her to experience difficulty in securing employment with other employers.

OCGA § 34-6A-2 (3) defines the term “ ‘[hjandicapped individual’ ” to mean “any person who has a physical or mental impairment which substantially limits one or more of such person’s major life activities, and who has a record of such impairment.” “ ‘Substantially limits’ ” is defined in OCGA § 34-6A-2 (8) as meaning “that the impairment so affects a person as to create a likelihood that such person will experience difficulty in securing, retaining, or advancing in employment because of a handicap.” “ ‘Major life activities’ means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” OCGA § 34-6A-2 (5). Given that Richardson’s impairment caused her to experience difficulty in working and retaining her employment at First Federal, and that she did not admit otherwise, we agree with the trial court’s rejection of First Federal’s contention that as a matter of law she failed to meet the definition of a “handicapped individual.”

Decided July 15, 1993 —

Reconsideration denied July 30, 1993 —

Zimring & Ellin, Jonathan A. Zimring, for Richardson.

Young, Clyatt, Turner, Thagard & Hoffman, Robert M. Clyatt, Daniel C. Hoffman, for Hennly.

Tillman, McTier, Coleman, Talley & Newbern, C. George Newbern, Edward F. Preston, for First Federal.

(b) We reject as well First Federal’s remaining arguments asserting error in the trial court’s denial of its motion for summary judgment as to this claim.

It argues that summary judgment in its favor was required because even assuming Richardson was handicapped, it could have accommodated her handicap only by modifying its premises, moving her work station out of the lobby and isolating her, which is not required under the Georgia statute. In the first place, we do not agree that such modification was the only accommodation possible. In the second place, Richardson has not sought accommodation or physical modification. She has asserted only that First Federal violated the Act by discriminating against her because of her impairment when it discharged her on the pretext of excessive absenteeism, although under her employer’s own policies, she had accrued sick leave sufficient to cover her absence due to illness.

The record does not support First Federal’s argument that Richardson’s sensitivity to the pipe smoke of customers rendered her unsuitable under the Act for that particular job.

First Federal failed to demonstrate that as a matter of law it was entitled to judgment, and the trial court properly denied its motion for summary judgment on the claim for violation of the GEEHC.

Judgment affirmed in Case No. A93A0807 and reversed in Case No. A93A0680.

Johnson and Blackburn, JJ., concur.

       Although the issue has not been raised by the parties, we construe the word “precipitation” in this quotation as applying to any situation in which contact is made with another person by issuing or directing some substance at the other, rather than making direct bodily contact.


author: Blackburn, Judge.

text:
    A93A0693.
    BIELING et al. v. BATTLE.
    (434 SE2d 719)
   Blackburn, Judge.

The plaintiff/appellee, Sallie M. Battle, filed the instant medical malpractice action on February 6, 1990, against appellants/defendants, Dr. Friedrich Christopher Bieling and Atlanta Obstetrics & Gynecology Group, P. A. (Atlanta Obstetrics), the professional association for which Bieling was employed, based upon Bieling’s failure to exercise the requisite degree of care in ordering an unindicated and unnecessary single unit of blood for a transfusion conducted during Battle’s hysterectomy of February 9, 1982. Allegedly, as a result of Bieling’s negligent conduct in ordering the blood, Battle contracted Acquired Immune Deficiency Syndrome (AIDS). Both Bieling and Atlanta Obstetrics denied liability. After the commencement of discovery, both moved for summary judgment, and the motion was denied by the trial court. We granted their application for interlocutory review of the trial court’s denial of the motion.

In her deposition of April 26, 1990, Battle stated that she was in good health prior to 1982. She further stated therein that her gynecologist advised her that she had developed a thyroid tumor and her family physician referred her to Bieling for the removal of the tumors. During the surgery performed for the removal of the tumors, she received a blood transfusion. However, the possibility of a blood transfusion was not previously discussed with her by Bieling. Approximately five or six days after her initial release from the hospital, Battle was readmitted to the hospital based upon her complaints of fevers and chills. At that time, a battery of tests was conducted and the results of the testing were negative. During the second hospitalization Battle had another blood transfusion ordered by Dr. Bieling. Upon her release from the hospital following the second hospitalization, Battle underwent periods of time in which she felt infirm. Although she sought medical treatment for her weakened condition from Dr. McClatchey in 1983 and 1989 and thought that she might possibly have AIDS, it was not until January 1989, that she was diagnosed with the disease. Battle maintains that she is not an IV drug user and her sexual activity has been limited to her two husbands prior to their deaths. She contends that her past behavior eliminates two of the known risk factors associated with the disease, and concludes that she acquired the disease during the first blood transfusion. This conclusion is, in part, based upon her infirm condition after the hysterectomy which warranted hospitalization. Based upon an investigation of the possible donors of the unit of blood in question, Battle maintains that one of the three donors had the AIDS virus. It is undisputed and Battle admits in interrogatory answers that the transmission of AIDS was not a known risk of blood product use recognized in the medical community in February 1982.

In his affidavit filed in support of the motion for summary judgment, Bieling, a board-certified obstetrician and gynecologist, opined that the care and treatment rendered to Battle was within that degree of skill and care which, under similar conditions and like surrounding circumstances, is ordinarily employed by the medical profession generally. Before he concluded that a blood transfusion was necessary during Battle’s hysterectomy, he mentally performed a risk benefit analysis to determine the necessity for transfusing Battle and considered those risks of blood transfusions which were known within the medical community generally. AIDS as a risk of a blood transfusion was completely unknown at that time, and Bieling would have had no reason to advise Battle of the risk of same. As she was not injured by any of the known risks of receiving a blood transfusion, of which Bieling might have advised her, his failure to do so is of no consequence. On admission for a total hysterectomy on February 9, 1982, Battle’s admitting diagnosis was fibroids and rectal bleeding. During surgery, Battle was diagnosed as having excessive bleeding and Dr. Bieling concluded that she needed the blood transfusion because of her below normal blood count and because of the sudden, rapid blood loss in the early stages of the surgery.

1. Bieling and Atlanta Obstetrics assert that the trial court erred in failing to grant their motion for summary judgment because Battle’s claim is barred by the statute of repose prescribed in medical malpractice actions in OCGA § 9-3-71. We agree.

Generally, “an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.” OCGA § 9-3-71 (a). Subsection (b) of that same Code section, however, provides that “[notwithstanding subsection (a) . . . in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.” Although the legislature did not specifically indicate therein that this statute of ultimate repose could not be applied to injuries which occurred prior to July 1, 1985, the appellate courts of this state have repeatedly applied OCGA § 9-3-71 (b) to causes of actions which accrued prior to the enactment of the statute. Recently, in Bradway v. American Nat. Red Cross, 263 Ga. 19 (426 SE2d 849) (1993), in an action filed in 1987 by a plaintiff alleging that she contracted AIDS when she received a blood transfusion during a surgical procedure in 1983, our Supreme Court held that the action was one of medical negligence subject to the statutes of limitation and repose found in OCGA § 9-3-71. Earlier, in Hunter v. Johnson, 259 Ga. 21, 22 (4) (376 SE2d 371) (1989), a 1987 action for damages resulting from allegedly negligent treatment which occurred in 1984, the Supreme Court, in affirming the trial court’s denial of the physician’s motion for summary judgment, applied the 1985 amendment to OCGA § 9-3-71 (b) to a cause of action arising in 1984. The statute of limitation contained in OCGA § 9-3-71 (a) mandates the filing of a medical malpractice action within two years after the date on which the injury or death arising from a negligent or wrongful act or omission occurs, while the statute of repose contained within the same Code section, limits the filing of a medical malpractice action, abrogating any action filed more than five years after the date on which the negligent or wrongful act or omission occurred. Inasmuch as the alleged negligent act occurred on February 9, 1982, and the action was filed February 6, 1990, we may resolve this case under the statute of repose, OCGA § 9-3-71 (b), which bars actions for medical malpractice brought more than five years after the wrongful act or omission occurred and without considering OCGA § 9-3-71 (a), which provides a two-year statute of limitation for the filing of an action for medical malpractice measured from the date on which an injury or death arising from a negligent or wrongful act or omission occurred. There are no applicable tolling exceptions as provided by OCGA § 9-3-73 herein involved.

Regardless of the desirability of arriving at a particular state of the law, this court has no authority to legislate, and any such changes such as the measuring point of the statute of repose must be addressed to' the legislature, unless the subject statute is unconstitutional, which is not within this court’s authority to declare. “ ‘[W]here a constitutional provision or statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms. (Cits.)’ [Cit.]” Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981).

The subject action was brought more than five years after the date of the alleged negligent act, and is clearly barred by the statute of ultimate repose. “Pursuant to OCGA § 9-3-71 (b), no action for medical malpractice may be brought after five years from the date of the alleged negligent act even if the injury arising from that act did not occur within five years.” (Emphasis supplied.) Whitaker v. Zirkle, 188 Ga. App. 706, 707 (1) (374 SE2d 106) (1988).

Although Battle asserts that the statute of repose violates Art. I, Sec. X, Par. I, of the Georgia Constitution, which prohibits the retroactive application of statutes, the Hunter court noted that “there is no question of retroactivity here, as the amended (1985) version of OCGA § 9-3-71 was in effect at the time that the action was filed. There being no attack upon the validity of the amended statute, nothing in it compels the conclusion that the amended version should not apply to actions filed after its effective date.” Hunter, supra at 22. (Emphasis supplied.) Although Battle asserts otherwise, Hunter involved the application of both the statute of limitation as well as the statute of repose found in OCGA § 9-3-71. Contrary to the contentions espoused by Battle, we have noted that “[s]tatutes of limitation and statutes of repose ‘look only to remedy and not to substantive rights,’ see Dixie Constr. Co. v. Williams, 95 Ga. App. 767, 770 (98 SE2d 582), and thus under certain conditions can be applied retroactively. [Cit.]; OCGA § 1-3-5.” LFE Corp. v. Edenfield, 187 Ga. App. 785, 787 (371 SE2d 435) (1988).

In Lasoya v. Sunay, 193 Ga. App. 814, 815 (1) (389 SE2d 339) (1989), based upon our application of the five-year statute of repose in OCGA § 9-3-71, we noted that the plaintiff was summarily precluded from recovering damages in an action filed in 1987 for allegedly negligent conduct which occurred in 1981. Additionally, in Schmidt v. Parnes, 194 Ga. App. 622 (1) (391 SE2d 459) (1990), we affirmed the trial court’s grant of summary judgment in favor of the dentist because the plaintiff did not file the action until 1987 involving an allegedly negligent event that occurred in 1981.

In the case sub judice, “[a]s the complaint was filed after the effective date of the statutory amendment, no issue of retroactivity is involved (Hunter v. Johnson, 259 Ga. 21 (3) (376 SE2d 371)), and the statute as amended governs (LFE Corp. v. Edenfield, [supra]).Mansfield v. Pannell, 194 Ga. App. 549, 550 (390 SE2d 913) (1990). We conclude that the statute of ultimate repose contained within OCGA § 9-3-71 (b) is controlling and bars the adjudication of this action. Consequently, Bieling and Atlanta Obstetrics were entitled to summary judgment as a matter of law.

2. Additionally, under the facts of this case, Bieling and Atlanta Obstetrics were entitled to summary judgment as a matter of law because it is undisputed that the contraction of AIDS by Battle was not the natural or foreseeable proximate result of a blood transfusion known within the medical community in 1982. “ ‘[P]hysicians are under the duty to exercise only such reasonable care in looking after and protecting a patient that the patient’s condition, which is known by the physician, may require. Accordingly, no physician is required to guard against or take measures to prevent that which a reasonable physician under similar circumstances would not see or anticipate as likely to happen.’. . . [Cit.]” Brannen v. Prince, 204 Ga. App. 866, 870 (6) (421 SE2d 76) (1992). Assuming for the purpose of this review that Battle contracted AIDS from the blood transfusion during her hysterectomy, Battle does not dispute that the general medical community could not have anticipated in 1982 that AIDS was a natural, foreseeable risk associated with a blood transfusion as such connection had not been made at that time and was not a part of general medical knowledge. Liability of a physician for malpractice must be based on fault. To make the physician liable for damages arising out of a risk of which neither the physician nor the general medical community is aware, is to make the physician the insurer of the patient, which the law does not allow. As the Supreme Court noted in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), in opposing a motion for summary judgment, “the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Although Battle maintains that the issue of foreseeability is more appropriately a jury determination based upon Atlanta Ob. & Gyn. Group, P. A. v. Coleman, 260 Ga. 569 (398 SE2d 16) (1990), the case sub judice is distinguishable. In Coleman, the record was replete with factual disputes whereas the facts in the present case are undisputed. Accordingly, the trial court erred in failing to grant summary judgment in favor of Bieling and Atlanta Obstetrics.

Decided June 24, 1993 —

Reconsideration denied July 30, 1993 —

Alston & Bird, Judson Graves, Holly B. Barnett, for appellants.

William Q. Bird, for appellee.

Judgment reversed.

Johnson and Smith, JJ., concur.

       The medical records show that Battle was diagnosed with uterine fibroids (tumors) and rectal bleeding on February 7, 1982.

       Battle’s first husband died of a heart attack while her second husband died of cancer. There is nothing in the record that establishes that either of her husbands was not HIV positive at the time of their deaths.


author: Cooper, Judge. Beasley, Presiding Judge,

text:
    A93A0696.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. MERCK.
    (434 SE2d 585)
   Cooper, Judge.

Appellee sued Georgia Farm Bureau Mutual Insurance Company (“Georgia Farm”) based on its denial of collision coverage after appellee’s car was damaged in an accident. Georgia Farm denied coverage after concluding that the loss was the result of an accident in which the driver was charged with racing. The matter was tried before a jury which awarded appellee his property damage, bad faith penalties and attorney fees. This appeal followed.

The record reflects that appellee owned a 1988 Ford Mustang GT, which was fully insured with collision coverage by Georgia Farm. On the evening of November 25, 1989, the Mustang was involved in a one-car accident while being driven by appellee’s nephew, Milton Andrew Campbell (“Campbell”). Campbell and Marcus Merck, appellee’s son, were riding around in the vehicle when they decided to drive to a park where they met friends. After arriving at the park, two of Campbell’s friends, Troy Wilburn and Scottie Whitfield, decided to engage in a car race. The group then proceeded to Water Works Road in Commerce, Georgia, where the race ensued. When Campbell arrived at the site, he parked the Mustang off to the side of the road and watched the others line up for the race. Though not connected with the race himself, Campbell at some point, after the race had begun, followed the vehicles that were involved. After the race concluded and as Whitfield’s pickup truck was re-entering the right lane, Campbell drove up behind the truck and attempted to pass the vehicle. However, Campbell hit unidentified matter on the side of the road and wrecked the Mustang. Following the wreck, Trooper Sullivan arrived on the scene to investigate the accident. Upon conducting a physical investigation of the accident scene and interviewing persons on the scene, Trooper Sullivan determined that there was no physical evidence that uncovered any causes for the accident; that Campbell was traveling at a speed greater than the posted speed limit of 55 mph; and that only two vehicles were involved in the race, that of Wilburn and Whitfield. However, the officer cited Campbell for driving under the influence and racing, to which Campbell pled not guilty.

On the first business day following the accident, appellee reported the accident to Georgia Farm. Georgia Farm’s claims adjuster, Doug Oliver, received the loss notice and police report on December 1, 1989 and proceeded to interview Campbell and appellee. Campbell denied that the Mustang was involved in a race on the night in question; however, Oliver got the impression that Campbell was not candid. Oliver interviewed the officer and learned of Campbell’s traffic citations, and on January 19, 1990, Georgia Farm denied appellee’s claim based on a racing exclusion in the policy but opted to make full payment of the car’s outstanding balance to the bank/lienholder.

1. In its first two enumerations of error, Georgia Farm contends the trial court erred in granting appellee’s motion in limine preventing the introduction at trial of the racing citation issued to Campbell, Trooper Sullivan’s testimony about the racing citation, Sullivan’s expert opinion as to whether appellee’s vehicle was in a race, and the accident report. Georgia Farm argues that this evidence was needed, not as evidence of Campbell’s negligence or guilt, but to establish that Georgia Farm’s denial of the claim was done in good faith. We agree. “ ‘ “The policy of Georgia ... is to admit evidence, even if its admissibility is doubtful, because it is more dangerous to suppress the truth than to allow a loophole. . . .” (Cit.) If evidence is relevant, has probative value, and is not inadmissible for some reason of prejudice or illegality, it should be admitted.’ [Cit.]” Massachusetts Bay Ins. Co. v. Hall, 196 Ga. App. 349, 356 (4) (395 SE2d 851) (1990). While such evidence might not be admissible in a case in which Campbell’s negligence or guilt is at issue, this evidence was relevant to the issue of bad faith and should have been admitted at trial. Id. Compare Emory v. Dobson, 206 Ga. App. 482, 483 (426 SE2d 50) (1992); Luke v. Spicer, 194 Ga. App. 183, 184 (2) (390 SE2d 267) (1990). Thus, the trial court erred in granting appellee’s motion in limine and excluding the evidence at trial.

Decided July 16, 1993 —

Reconsideration dismissed July 30, 1993.

Blasingame, Burch, Garrard & Bryant, Andrew J. Hill III, Milton F. Eisenberg II, for appellant.

Chambers, Mabry, McClelland & Brooks, Lawrence J. Hogan, C. Gregory Ragsdale, Gregory M. Perry, for appellee.

2. In view of our conclusion in the first division, we need not address appellant’s remaining enumerations of error that the trial court erred in denying its motion for directed verdict as to appellee’s claims for attorney fees and bad faith penalties and in refusing to charge the jury on the definition of “racing” under OCGA § 40-6-186.

Judgment reversed.

McMurray, P. J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I concur in the judgment.

With respect to Division 2, the enumeration relating to the request to charge the definition of racing should be addressed because on retrial, it is likely to arise again. If the court again makes the same ruling, another appeal will possibly result. If it is then decided that this ruling, requested again at the second trial, is erroneous, a reversal and third trial will result.

This can be avoided at this stage. In addition, of course, ruling now on this inevitable issue will provide instruction to the court and the parties with respect to the proper disposition of this issue at the second trial.


text:
    A93A0700.
    BASTIEN v. METROPOLITAN PARK LAKE ASSOCIATES, L.P. et al.
    (434 SE2d 736)
   Smith, Judge.

Bertha Bastien brought this tort action to recover for injuries allegedly received when she fell while negotiating stairs leading to the apartment she rented from appellee-defendant Metropolitan Park Associates, L.P., a limited partnership in which defendant Metropolitan Asset Sports, Inc. is the sole general partner (collectively, Metrópolitan). After discovery, Metropolitan moved for summary judgment. This motion was granted by the trial court and Bastien appeals.

Decided July 12, 1993 —

Reconsideration denied July 30, 1993 —

Flynn, Gottlieb & Kachmarsky, Edward D. Flynn III, for appellant.

Duncan & Mangiafico, Edgar S. Mangiafico, Jr., for appellees.

It is undisputed that the stairway leading from the parking lot to Bastien’s apartment had no handrail, and the parties have stipulated that the absence of that handrail was in violation of an applicable building code. It is further undisputed that no handrail existed on that stairway when Bastien moved in. The trial court concluded that Bastien’s knowledge of the defect was equal to that of Metropolitan and that she therefore would be unable to establish the requisite superior knowledge of the landlord.

Bastien correctly asserts that although the defect was obvious when she took possession of the apartment, that is not necessarily a bar to recovery when the defect is in violation of a duty created by applicable statute or administrative regulation. OCGA § 44-7-2 (b) (3). In Thompson v. Crownover, 259 Ga. 126, 129 (3) (381 SE2d 283) (1989) the Supreme Court applied the following rule from The Restatement of Law (Second), Property, § 17.6: “A landlord is subject to liability for physical harm caused ... by a dangerous condition existing before or arising after the tenant has taken possession, if he has failed to exercise reasonable care to repair the condition and' the existence of the condition is in violation of ... an implied warranty of habitability ... or a duty created by statute or administrative regulation.” “The landlord, the owner of the [underlying] estate, cannot avoid duties created by housing codes.” Thompson v. Crownover, supra. This principle applies with equal force to a landlord’s violation of a duty created by a building code or other regulatory provision affecting safety of the premises. The authorities relied upon by Metropolitan, such as Powell v. Woodridge Condo. Assn., 206 Ga. App. 176 (424 SE2d 855) (1992) and Hall v. Thompson, 193 Ga. App. 574 (1) (388 SE2d 381) (1989), do not purport to apply to an admitted breach of duty imposed by an applicable housing code, building code, or other regulation, and so do not compel a different result here. The trial court erred in granting Metropolitan’s motion for summary judgment.

Judgment reversed.

Johnson and Blackburn, JJ., concur.


text:
    A93A0705.
    NORTH AMERICAN LIFE & CASUALTY COMPANY, INC. v. RIEDL.
    (434 SE2d 820)
   Smith, Judge.

After appellee-plaintiff Frank Riedl’s daughter incurred approximately $36,000 in medical expenses at Anneewakee Treatment Center in Douglasville, Georgia, Riedl brought this contract action seeking that amount as coverage under a medical benefits policy issued by appellant-defendant North American Life & Casualty Company, Inc. (insurer), and also seeking punitive damages and attorney fees. Arguing that the named insured no longer was the real party in interest, the insurer moved to dismiss on the ground that Riedl’s wife, the owner of the policy, had executed an assignment of the policy benefits in favor of the health care provider. Although this motion was denied, the trial court timely certified its order for immediate review. The insurer’s application for interlocutory appeal was granted by this court and a timely notice of appeal was filed.

1. The assignment of contractual benefits under the policy provided: “In consideration of the services rendered by the Anneewakee Treatment Center [regarding a specified period of treatment] . . ., I hereby assign both BASIC and/or MAJOR MEDICAL to [Anneewakee] . . . under [the policy issued by the insurer] . . . insofar as they are necessary to cover . . . [expenses]. . . . [S]hould the amount be insufficient to cover the entire . . . expenses, [the assignor insured] will be responsible for payment of the difference.” This assignment is signed by Jean Riedl as the policyholder. The assignment purports to convey to Anneewakee all benefits accruing under the policy to the extent required by the expenses incurred. These are the only contractual damages sought. The insurer has not paid benefits to either Anneewakee or to the Riedls.

OCGA § 9-11-17 (a) provides, in part: “Every action shall be prosecuted in the name of the real party in interest.” “Cases construing the real party in interest provision can be more easily understood if the concept is summarized as follows: An action shall be prosecuted in the name of the party who, by the substantive law, has the right sought to be enforced.” 3A Moore’s Federal Practice, Par. 17.07. (2nd ed. 1993). “The function of [OCGA § 9-11-17] is simply to protect the defendant [here appellant insurer] against a subsequent action by the party actually entitled to recover, and to insure generally that the judgment will have its proper [res judicata effect]. Therefore, a real-party-in-interest objection is similar to the defense of failure to join an indispensable party under [OCGA § 9-11-19].” (Citations and punctuation omitted; emphasis supplied.) Rigdon v. Walker Sales & Svc., 161 Ga. App. 459, 462 (2f) (288 SE2d 711) (1982).

OCGA § 9-11-19 (a) (2) (B) provides: “A person who is subject to service of process shall be joined as a party in the action if . . . [h]e claims an interest relating to the subject matter of the action and is so situated that the disposition of the action in his absence may . . . [l]eave any of the persons who are already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.” After a valid assignment of medical insurance benefits to a health care provider, the assignee/provider has a legal right which may be enforced directly against the insurer as an alleged debtor of the assignor insured. Santiago v. Safeway Ins. Co., 196 Ga. App. 480, 482 (1) (396 SE2d 506) (1990) (whole court). Compare OCGA § 9-2-20 (a).

Jean Riedl never made an assignment of the entire insurance contract nor did she expressly assign any and all causes of action. “ ‘An assignment of property carries with it the right to the proceeds thereof, although an assignment of the expected proceeds of property gives no right to the property itself.’ ” Reserve Life Ins. Co. v. Peavy, 94 Ga. App. 31, 33 (1) (93 SE2d 580) (1956), citing what is now 6A CJS, Assignments, § 76. It is clear, however, that by her assignment of prospective medical care insurance benefits, the policyholder has assigned to Anneewakee at least a joint interest in the substance of the right here sought to be asserted. Under the authority of Santiago v. Safeway Ins. Co., supra at 482 (2), a debtor of the assignor, who has notice of the assignment, pays the debt to the assignor at his peril, because the assignment imposes upon the debtor an equitable and moral obligation to pay the assignee. The assignment of prospective medical benefits by the named insured under a healthcare insurance policy makes the assignee an indispensable party within the meaning of OCGA § 9-11-19 (a) (2) (B) in any action on the policy involving the benefits so assigned. The trial court erred in allowing the present action to be maintained solely by the assignors of the applicable policy benefits over the insurer’s real-party-in-interest objection.

Vulcan Life Ins. Co. v. Davenport, 191 Ga. App. 79, 85 (6) (380 SE2d 751) (1989) does not compel a different result. OCGA § 9-11-17 (a) no longer contains the provision from former Code Annotated § 81-1307 which had been interpreted to allow an assignor, who held legal title to an insurance contract, to bring suit for the use of an assignee, who held only an equitable interest in the proceeds of the policy. See Santiago v. Safeway Ins. Co., supra at 483 (1) (Beasley, J., concurring specially).

2. OCGA § 9-11-17 (a) contains the additional proviso: “No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest.”

Decided July 16, 1993 —

Reconsideration denied July 30, 1993 —

Booth, Wade & Campbell, Douglas N. Campbell, Thomas A. Croft, for appellant.

Harry L. Trauffer, for appellee.

The judgment of the trial court is therefore vacated and the case remanded with direction that a reasonable opportunity be provided for Anneewakee Treatment Center to ratify or join the action pursuant to OCGA § 9-11-17 (a), or, upon proper motion, to be joined or substituted in accordance with OCGA § 9-11-19 (a). Allman v. Hope, 200 Ga. App. 137, 139 (1) (407 SE2d 107) (1991). The trial court is directed to permit such joinder, but upon failure of appellant to so move within 20 days of the receipt of the remittitur, a denial of the motion to dismiss on the basis of real-party-in-interest shall be entered. See Henry v. Moister, 155 Ga. App. 462, 463 (1) (271 SE2d 40) (1980).

Judgment vacated and case remanded with direction.

Johnson and Blackburn, JJ., concur.


text:
    A93A0714.
    AMERICAN RESOURCES INSURANCE COMPANY v. CONNER et al.
    (434 SE2d 737)
   Smith, Judge.

We granted the application of American Resources Insurance Company for leave to appeal in this workers’ compensation case. The appeal is from the superior court’s affirmance of a decision of the State Board of Workers’ Compensation that American is liable for coverage of Conner’s compensable claim.

The facts, as found by the ALJ and adopted by the Board, show that Vector Construction, Inc., a general construction contractor, and Omega Interiors, a wallboard installation subcontractor, are sister corporations sharing the same office suite and having common ownership and officers. Ethan Krash is an officer in both corporations. Krash, through his agent, Bill Murphy, obtained separate workers’ compensation insurance policies for Omega and Vector. Murphy, in turn, proceeded through an intermediary, ARS Underwriters, and its employee Bruce Baldwin, who dealt with American. American issued the policies for terms commencing October 24, 1989 and ending October 24, 1990. Because of an adverse loss ratio, however, American canceled Omega’s policy effective June 11, 1990. Vector’s policy continued in effect.

After the cancellation of the Omega policy, Murphy and Baldwin made several attempts to persuade American to reconsider its decision, proposing as an incentive that Omega submit to a $10,000 deductible policy. They also threatened to place Vector’s insurance elsewhere if Omega’s policy was not reinstated or a new policy issued. American’s unambiguous response was that it was not interested in insuring Omega under any circumstances, and that if necessary, it would close both accounts rather than insure Omega. Vector did not follow through on its threat to place its coverage elsewhere and a renewal policy was issued to Vector on October 24, 1990, for a one-year term.

Since Vector was considered a good workers’ compensation risk, while Omega was considered a bad risk, Baldwin suggested the idea of “leasing” Omega’s employees to Vector through an employee leasing agreement, which he had successfully employed previously to obtain insurance coverage for other clients. Sometime between October 1, 1990 and October 18, 1990, Omega and Vector executed such an agreement, using forms supplied by Baldwin, which purported to move Omega’s employees to Vector for purposes of benefit administration, including workers’ compensation coverage. Baldwin then requested that American issue endorsements to Vector’s policy providing coverage for the additional job classifications of “Wallboard-Install and Drivers” and “Clerical” workers, the same classifications covered in Omega’s previous canceled policy. Payrolls of $100,000 and $20,000 were provided for each respective classification added. In December 1990, American issued the requested endorsements with an effective date retroactive to October 31, 1990.

Omega continued to operate, and Conner was injured while working on an Omega project on February 5, 1991. Conner was an employee of Omega, not Vector. The parties stipulated that his claim is compensable.

The ALJ found that the language in the policy did not expressly exclude employees covered by an employee leasing agreement. However, he also found that the agreement in issue was “intended ... to provide workers’ compensation insurance for Omega employees through Vector without the knowledge of American”; and that it was “a subterfuge, if not an outright fraud.” Nevertheless, the ALJ concluded that information possessed by American should have raised “red flags” requiring it to inquire or investigate further the request before issuing the endorsements. He concluded that American’s failure to do so before issuing the endorsements resulted in coverage.

1. American contends the ALJ’s conclusion of law, imposing upon it a duty to investigate further, is not supported by evidence in the record. We agree.

(a) In support of his conclusion of coverage the ALJ pointed to “red flags” created by the identical nature of the employee classifications in Vector’s requested endorsement and Omega’s prior policy, and the known relationship between Omega and Vector. The record reveals, however, that these “red flags” were not of a nature sufficient to place American on notice that it might be covering Omega employees under the Vector endorsements. The payroll amounts for the identical classifications listed in Omega’s previous, separate policy had been far in excess of the amounts listed in Vector’s request for an endorsement. Further, as American’s underwriting manager testified, it was not unusual for a general contractor to request coverage for wallboard installation, an activity related to general contracting. Indeed, even while insuring Omega separately, American had issued a policy to Vector containing an endorsement for the wallboard installer job classification “if any basis [existed].” We find, therefore, no evidence in the record supporting the ALJ’s conclusion that the information possessed by American demanded that it question or further investigate Vector’s requested endorsement.

(b) Moreover, Baldwin’s alleged knowledge that the employee leasing agreement was intended to cover Omega employees is not attributable to American. Contrary to Vector’s argument, Baldwin was not American’s agent. The ALJ made no finding of fact as to this issue. However, Baldwin testified that ARS was an independent insurance agency that placed insurance with several different carriers, and both Baldwin and American’s underwriting manager testified that Baldwin did not have actual authority to bind coverage for American. See generally Alexander Underwriters &c. v. Lovett, 177 Ga. App. 262, 265-266 (2) (339 SE2d 368) (1985).

Neither may Baldwin’s knowledge be imputed to American under an apparent authority theory, as the record shows that American never had direct contact with Vector, never held out Baldwin as its agent, and never led Vector to believe Baldwin had authority to act on its behalf. See Howard v. St. Paul &c. Ins. Co., 180 Ga. App. 802, 804 (1) (350 SE2d 776) (1986).

2. The essence of the rationale given by the ALJ for his conclusion that coverage existed is that American should have known that the endorsements to the Vector policy were actually intended to cover Omega employees, and is therefore estopped to deny coverage. The law is otherwise. Although the doctrine of estoppel has been applied in certain situations to find coverage where the insurer knew certain facts concerning the insured or the claim and was deemed to have accepted the risk, estoppel “has [not] been found concerning such basic elements of the policy as who is insured.” Sandner, Inc. v. Centennial Ins. Co., 189 Ga. App. 277, 280 (1) (375 SE2d 611) (1988), modified on other grounds, 259 Ga. 317 (380 SE2d 704) (1989).

Although the facts as found by the Board are conclusive and binding on this court if supported by any evidence, Little v. Cox Enterprises, 195 Ga. App. 211, 212 (393 SE2d 57) (1990), and the ALJ found that the language of the Vector policy does not exclude leased employees from coverage, he also found that the employee leasing agreement was “a subterfuge, if not an outright fraud.”

Decided July 12, 1993 —

Reconsideration denied July 30, 1993 —

Van Gerpen, Hoffman & Harris, G. Scott Hoffman, Terry L. Straw ser, for appellant.

Swift, Currie, McGhee & Hiers, Robert R. Potter, Melodie L. Belcher, Thacker & Thacker, Louis C. Thacker, for appellees.

The evidence shows that the subterfuge was Vector’s intention to cover Omega employees under the endorsements to its policy, through the employee leasing agreement, while withholding knowledge of this arrangement from American. Given that American had previously refused under any circumstances to agree to cover Omega employees, even at the risk of losing the Vector account, it is clear that had American known the employee leasing agreements were intended to cover Omega employees, it would not have issued the endorsements. Coverage of Omega employees was material to the risk assumed by American. Under those circumstances, the evidence demands a finding that no coverage existed, Smith v. Integon Life Ins. Corp., 195 Ga. App. 481-482 (393 SE2d 741) (1990), and American is not es-topped to deny that coverage exists for Omega employees. OCGA § 33-24-7 (b).

3. We reject Vector’s argument that the judgment below must be affirmed because American waived its right to avoid coverage when, instead of rescinding the Vector policy and tendering back the premium upon learning of the purported subterfuge, it canceled the Vector policy prospectively. See Loeb v. Nationwide Mut. Fire Ins. Co., 162 Ga. App. 561, 562-563 (292 SE2d 409) (1982). Because only the endorsements, and not the entire Vector policy, were involved in the subterfuge, and no additional premium had been paid for the endorsements, the principle involved in Loeb is inapplicable here. No basis existed for rescinding the entire policy. American has not sought to avoid paying claims made by legitimate Vector employees during the period the Vector policy was in effect.

Since our review of the record has revealed no basis for coverage of Conner’s claim under the policy issued by American to Vector, the judgment against American must be reversed.

Judgment reversed.

Johnson and Blackburn, JJ., concur.