author: Blackburn, Judge.

text:
    A98A0679.
    AMERICAN SOUTHERN INSURANCE COMPANY v. ABBENSETT et al.
    (501 SE2d 53)
   Blackburn, Judge.

American Southern Insurance Company appeals the finding of the trial court that a policy of insurance issued by it to the State of Georgia provides coverage for a certain accident involving a state-owned vehicle. For the reasons set forth below, we affirm.

On March 28, 1996, Robert Abbensett, while driving a Fulton Express bus, crossed over into the opposing lane of traffic and crashed head-on into a car being driven by Barbara Furlong. Furlong died as a result of the accident. At the time of the collision, Abbensett was employed by Atlanta Transportation Systems, Inc. (ATS), a for-profit company which had entered into a contract on an independent contractor basis with Fulton County to provide drivers for county buses. The bus being driven by Abbensett was owned by the Georgia Department of Human Resources.

At the time of the accident, the State of Georgia had an insurance policy in place with American. Prior to the accident on March 28, 1996, ASI had paid several claims made by the State regarding accidents involving ATS drivers who were operating vehicles owned by the State. However, despite its prior history of paying claims, American initially refused to provide any coverage for the accident resulting in the death of Furlong.

On June 28, 1996, American filed a declaratory judgment action in which it asked the court to determine whether the policy issued by it in favor of the State of Georgia covered either ATS or Abbensett. On November 14, 1996, Abbensett’s personal insurance company, Government Employees Insurance Company (GEICO) filed a motion for summary judgment that it had no obligation to provide coverage for the accident. On February 25, 1997, American filed a motion for summary judgment that it had no obligations to provide coverage, and, in response, Parrie Lea Roth, the executrix of Furlong’s estate, and Abbensett filed separate motions for summary judgment, each contending that American was obligated to provide coverage for the accident.

On July 9, 1997, the trial court ruled that, due to ambiguities contained within the policy issued by American, the policy had to be construed against American and in favor of providing coverage to ATS and Abbensett. Accordingly, the trial court denied American’s motion for summary judgment and granted Roth’s and Abbensett’s motions for summary judgment on the issue of liability. The trial court also granted GEICO’s motion for summary judgment, finding that it had no obligation to provide coverage. American timely appealed the July 9, 1997 rulings of the trial court.

On January 14, 1998, during the appeal process, Roth sent a demand letter to American “to afford [American] one last opportunity to honor its contract and provide coverage.” The demand was for $500,000 to settle the claims against Abbensett and ATS. On or about February 17, 1998, American tendered a $500,000 check to Roth in settlement. This represented the limits of the policy coverage. While payment of the policy limits renders moot the appeal from the trial court’s ruling on American’s challenge to the existence of coverage, this Court will exercise its discretion and address the merits of the appeal.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light, most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

1. In its first and second enumerations of error, American contends that the trial court erroneously found that ATS and Abbensett are covered as insureds under the policy issued by it.

American claims that ATS and Abbensett were not covered by the policy based on certain exclusions therein. However, American bore the burden of proof to show that the exclusions claimed by it applied in this matter. Reliance Ins. Co. v. Walker County, 208 Ga. App. 729, 731 (431 SE2d 700) (1993). “In examining whether [American] met its burden, three rules of contract construction are applicable. First, all ambiguities in insurance contracts must be construed against the drafter, which is [American]. Isdoll v. Scottsdale Ins. Co., 219 Ga. App. 516, 518 (1) (466 SE2d 48) (1995). Genuine ambiguities arise ‘(w)henever the phrasing of an insurance policy is so confusing that an average person could not make out the boundaries of the coverage.’ Id. Second, all exclusions from coverage sought to be invoked must be strictly construed. Richards v. Hanover Ins. Co., 250 Ga. 613, 615 (1) (299 SE2d 561) (1983). Third, insurance contracts are to be read in accordance with the reasonable expectations of the insureds, where possible. Id.” Tifton Machine Works v. Colony Ins. Co., 224 Ga. App. 19, 20 (480 SE2d 37) (1996).

The policy in question includes in its definition of those insured, among others: (1) “[a]ny employee of the State of Georgia while operating an automobile owned by the State, its agencies or its instrumentalities” and (2) “[a]ny other person who is not a State Employee while using a vehicle with authorization, provided his/her actual operation or (if he/she is not operating) his/her other actual use is within the scope of such authorization.” As used in the policy, the term “state employee” refers to “[a]ny officer, employee, or agent of the State of Georgia including elected or appointed officials, law enforcement officers, and persons acting on behalf or in service of the State of Georgia in an official capacity, whether with or without compensation, but the term does not include an independent contractor with the State of Georgia.”

While ATS and Abbensett do not appear to be encompassed by the policy provision applicable to State employees because they are independent contractors working for the State, they would appear to fall under the second definition of insured provided above. American makes several arguments against such inclusion. First, American argues that ATS, a corporation, cannot be considered to be a person under its policy. However, the policy does not explicitly define the word person, and, indeed, while the general heading under the policy refers to “persons insured,” it proceeds to list both individuals and corporate entities thereunder. Therefore, this ambiguity must be construed against American pursuant to the standard rules of construction, and ATS cannot be excluded from coverage on the grounds that it is not a person. Abbensett, on the other hand, clearly qualifies as a person who is not a State employee.

Second, American argues that neither ATS nor Abbensett were given authorization to operate the Fulton Express bus in accordance with the terms of the policy. However, the policy once again proves vague with regard to what the authorization requirement entails. It defines neither the source nor the scope of the authorization required. Once again, then, in the absence of explicit terminology in the policy, the policy must be construed against American in favor of ATS and Abbensett. Even under the assumption that “with authorization” contemplates authorization from the State of Georgia, as American contends, there is evidence that such authorization, at least in an implied sense, had been given by the State.

Even if the exclusions under the policy were unambiguous in their application to Abbensett and ATS, American has waived any right to rely on such exclusions by previously paying similar, though less expensive, claims. “While waiver or estoppel may not be used to enlarge the coverage contained in a policy of insurance, nevertheless, an insurer may waive any provision in an insurance policy inserted for its benefit, and may waive any condition or limitation in the policy upon which it could otherwise rely.” (Punctuation omitted.) Sargent v. Allstate Ins. Co., 165 Ga. App. 863, 865 (303 SE2d 43) (1983). Furthermore, “[p]ayment by the insurer with knowledge of the pertinent circumstances giving it a policy defense waives its right to rely thereon.” (Punctuation omitted.) Id. Here, American has paid, without argument, claims regarding ATS drivers in the past, although those claims were for less money than was involved here. In' addition, American has now paid the exact claim which is the source of contention in this case in settlement with Furlong’s estate. As such, American cannot now argue that exclusions under its policy should prevent coverage for ATS and Abbensett.

2. American argues that it should not be found to have acted in bad faith by originally refusing to pay the claims in contention hereunder. However, a motion concerning the issue of bad faith is still pending in the court below and is not presently before this Court. See OCGA § 5-6-34.

3. In its third enumeration of error, American argues that the insurance policy in question must be considered void because the State of Georgia had no authority to enter into such contract. Specifically, based on its interpretation of OCGA § 45-9-40 et seq., American argues that Georgia law does not allow for-profit contractors and their employees to be covered under insurance policies held by the State. In essence, American argues that it can now challenge the propriety of the policy itself even though it has accepted premiums pursuant to the policy, it has paid claims in the past pursuant to the policy, and it has paid the claim in contention hereunder pursuant to the policy.

OCGA § 45-9-40 provides: “The Department of Administrative Services . . . shall secure a blanket or group liability insurance policy which shall provide state employees . . . protection from liability for damages arising out of the operation of any state owned vehicle ... by any state employee during the course of his employment.” In other words, this provision mandates that the State provide such a policy to protect its employees. American argues that this mandate must be strictly construed such that the State has no power to enter insurance contracts which provide for broader coverage. However, in a prior case in which the insurer attempted to argue that this statute did not allow the State to procure insurance covering vehicles leased by it, we indicated that “even though [OCGA § 45-9-40] mandates coverage only for state-owned motor vehicles, the subject policy provided coverage which included motor vehicles leased to the state as well as those owned by the state. There is nothing in the statute which proscribes such broader coverage.” (Emphasis supplied.) Alley v. Great American Ins. Co., 160 Ga. App. 597, 600 (287 SE2d 613) (1981). Likewise, in the matter at hand, even if the State has no mandatory obligation to provide insurance protection to independent contractors using its vehicles, there is nothing in the statute which precludes such broader coverage. As such, this enumeration is merit-less.

4. In its fourth enumeration of error, American contends that the trial court erroneously found that Abbensett’s personal insurer, GEICO, did not have to provide coverage for the accident. American, however, has no rights in or to the GEICO policy, and, as such, it has no standing to contest the trial court’s ruling with regard to GEICO’s coverage of Abbensett inasmuch as such ruling has no effect on American. “In order for a third party to have standing to enforce a contract, it must clearly appear from the contract that it was intended for his benefit. . . . The mere fact that a party would benefit from performance of the agreement is not alone sufficient.” (Citations and punctuation omitted.) Anthony v. Grange Mut. Cas. Co., 226 Ga. App. 846, 847-848 (487 SE2d 389) (1997). The simple fact is that American has no claim for relief with regard to GEICO’s policy, and, accordingly, we do not consider this enumeration.

Decided April 2, 1998

Chambers, Mabry, McClelland & Brooks, Robert M. Darroch, Richard H. Hill, Jr., for appellant.

Thurbert E. Baker, Attorney General, W. Wright Banks, Jr., Assistant Attorney General, Reynolds & McArthur, W. Carl Reynolds, Bradley J. Survant, Davis & Sissel, Kenneth M. Sissel, Drew, Eckl & Farnham, Joseph R. Cruser, Berlon & Timmel, James T. Perry, Lamar, Archer & Cofrin, David W. Davenport, Ware & Associates, Robert D. Ware, Robert A. De Metz, Jr., Kristine J. Moschella, Eugene R. Kiser, Christopher D. Langley, Schnader, Harrison, Segal & Lewis, James M. Hunter, Timothy H. Kratz, Laura Quinn, for appellees.

Judgment affirmed.

McMurray, P. J, and Eldridge, J., concur.

       Although there were others injured in this accident, any claims by such parties are not before this Court in this appeal.

       This bus had been donated by the Fulton County Office of Aging & Human Services.

       American contends that ATS and Abbensett could not have been given authorization to use the bus in question based on the vehicle’s “Statement of Understanding for Donated Vehicles,” which indicated that “[dlrivers of state vehicles must be either state employees or paid employees of the operating agency.” This document is not a part of the insurance policy. Moreover, this document, itself, is vague in that no definition of “operating agency” is given.

       American argues that, prior to paying Furlong’s estate in settlement, it reserved the right to seek reimbursement from ATS and Abbensett. Pretermitting the efficacy of this argument, American still waived its right to exclude ATS and Abbensett from its coverage by paying prior claims. Furthermore, as the policy was ambiguous, ATS and Abbensett were covered thereunder, and American would have no viable claim for reimbursement against them.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A98A0833.
    HARVEY v. THE STATE.
    (500 SE2d 916)
   Beasley, Judge.

Harvey appeals his conviction of sale of cocaine. OCGA § 16-13-30. He enumerates as error the trial court’s refusal to order the State to reveal the identity of a confidential informant and its failure to conduct an in-camera hearing to determine whether the informant’s testimony would aid the defense.

The State’s case against Harvey was built on the testimony of an undercover narcotics agent. At the motion hearing and trial, he testified that he instructed the informant to offer to transact a drug purchase for $210. The informant later advised the agent that he had told Harvey that he wanted to buy crack cocaine for the specified sum, and Harvey agreed to sell it to him. The informant telephoned Harvey while the agent was present, and a drug buy between the informant and Harvey was arranged at a location chosen by the agent. Prior to the buy, the agent thoroughly searched the informant’s vehicle and strip-searched the informant to ensure that he was not in possession of any contraband or any money other than official governmental funds.

The agent followed the informant to the designated location, and numerous other agents were present in the area. While the transaction took place, the agent was parked in a car 30 to 40 feet from the informant’s vehicle. At all times, the informant remained in the agent’s view. He and other agents electronically monitored the conversation between the informant and Harvey through a listening device. The agent described at the motion hearing the subject of the conversation as drug purchase, although he did not recall the exact words spoken.

The agent was not in a position to see the actual transfer of drugs from Harvey to informant, but the informant gave a prearranged signal of completion about two to three minutes after Harvey entered the informant’s vehicle. As other agents moved in to arrest Harvey, the agent observed Harvey drop the government funds onto the floorboard, and he saw crack cocaine on the center console.

In Harvey’s motion to reveal the informant’s identity, he alleged that the informant had acted to entrap him. This defense was abandoned and, at trial, defense witnesses testified that Harvey has a small business selling designer clothes and would not deal in drugs. They explained that on this occasion Harvey was meeting the informant to help change a flat tire, collect a debt, and sell him clothing. When asked why Harvey did not have any such clothing in his possession, he answered that he had accidentally left the clothes elsewhere.

In Roviaro v. United States, the United States Supreme Court held that where a criminal defendant seeks disclosure of the identity of a confidential informant, the trial court must “balance ‘the public interest in protecting the flow of information against the individual’s right to prepare his defense.’ [Cit.]”

“ ‘After noting that both Brady v. Maryland, 373 U. S. 83[, 87] (83 SC 1194, 10 LE2d 215) (1962), and Roviaro had a common basis of “fundamental fairness to the accused,” the court [in Thornton v. State, 238 Ga. 160, 162 (231 SE2d 729) (1977)] concluded that they must be read together where the question is disclosure of the identity of an informer-witness or informer-participant “if material to the defense on the issue of guilt or punishment.” (Cit.) If such an informer’s identity is required to be disclosed under Brady, the trial court must then apply the Roviaro balancing test. (Cit.)’ Moore, supra at 389, citing extensively Thornton, supra.”

Decided April 2, 1998.

Deville, Milhollin & Voyles, Roman A. Deville, Justin J. Wyatt, for appellant.

Corey B. Harvey, pro se.

Thomas J. Charron, District Attorney, Debra H. Bernes, Bruce D. Hornbuckle, Nancy I. Jordan, Assistant District Attorneys, for appellee.

“In determining if the [confidential informant’s] identity should be revealed by the State, the trial court must conduct a two-step hearing. Initially, the trial court should hear evidence to determine: (a) that the confidential informant is an alleged informer-witness or informer-participant whose testimony appears to be material to the defense on the issue of guilt or punishment; (b) that the testimony for the prosecution and the defense is or will lie in conflict; and (c) that the [confidential informant] was the only available witness who could amplify or contradict the testimony of these witnesses.” “The movant must establish the relevance, materiality, and necessity of the identity of the informant as a predicate for disclosure. [Cits.]” “Once this threshold has been met, the trial court must conduct an in camera hearing of the Cl’s testimony under the mandates set forth in Thornton, supra, and Moore, supra.”

Since Harvey’s informant was an informer-witness, the first question is whether his testimony appears material to the defense. It does not. The State’s evidence indisputably showed that crack cocaine was found in the informant’s vehicle after Harvey was there. The only testimony materially beneficial to Harvey would have been an admission by the informant that the cocaine was his and did not come from Harvey. What had transpired beforehand and common sense exclude any realistic possibility that the informant would be compelled to so testify.

Disclosure of the confidential informant’s identity was not required. As a result, an in-camera hearing was unnecessary.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       353 U. S. 53 (77 SC 623, 1 LE2d 639) (1956).

        Moore v. State, 187 Ga. App. 387, 389 (2) (370 SE2d 511) (1988).

        Bannister v. State, 202 Ga. App. 762, 763 (1) (415 SE2d 912) (1992).

       (Emphasis omitted.) Grant v. State, 230 Ga. App. 330, 331 (496 SE2d 325) (1998).

        Leonard v. State, 228 Ga. App. 792, 794 (492 SE2d 747) (1997).

        Grant, supra.

        Walton v. State, 194 Ga. App. 490, 491 (1) (390 SE2d 896) (1990).


author: Birdsong, Presiding Judge. Eldridge, Judge,

text:
    A97A1739.
    MONTOYA et al. v. THE STATE.
    (499 SE2d 680)
   Birdsong, Presiding Judge.

Jorge Montoya and Luis Franco appeal the denial of their motions to suppress.

In the light most favorable to the trial court’s judgment and findings (Miller v. State, 221 Ga. App. 494 (471 SE2d 565)), the evidence shows that after 12:00 a.m. on December 1, 1994, Montoya and Franco were traveling south in a rented car on Interstate 95, a known drug conduit, in Camden County, Georgia, when they were stopped by Sheriff’s Deputy Gregory Jackson, for following too closely. The driver, Montoya, exited the car on request and behaved normally until the deputy asked him about a large bulge toward the front of the waist area of his jacket. Montoya wore a leather-type bomber jacket with an elasticized waist; it was zipped halfway to his neck. The videotape of the incident shows the bulge at his waist was so large that it made the bottom of his jacket jut out from his body several inches. During Deputy Jackson’s brief inquiries, Montoya held and moved his arms and hands as if to protect the object under his jacket. With the back of his fingers Deputy Jackson lightly tapped the bulge. The object felt “real hard,” and Deputy Jackson asked what it was. Montoya refused to answer questions; he backed up and moved around, held his arms as if to shield the object, and put his left hand in his pants pocket almost directly under it. When Deputy Jackson inquired about the conspicuously hidden object, Montoya “got real nervous and offensive,” and Deputy Jackson believed Montoya might be carrying a bomb. Not knowing exactly what Montoya was concealing, Deputy Jackson became concerned for his safety and for the safety of persons traveling on the interstate. Because of this concern, he called for a backup unit. Backup police assistance arrived. Deputy Jackson asked Montoya to remove his hand from his pocket, and he did so for an instant but then immediately slid his fingers back in his pocket.

Up to this point Deputy Jackson had remained calm. No less than eight times the deputies asked and then loudly demanded that Montoya take his hand from his pocket. Montoya refused. The videotape shows that the officers became visibly wary and the audible and visible tension of the encounter heightened. Montoya refused to take his hand from his pocket, despite the officers’ repeated requests. Finally Deputy Jackson asked Montoya to unzip his jacket and demonstrated an unzipping motion to him. Montoya refused and kept his hand in his pocket. When Deputy Jackson moved as if to reach for Montoya’s jacket zipper, the encounter erupted into a swift scuffle with Montoya suddenly and aggressively bent over and moving forward as if to remove or prevent discovery of the object hidden in his jacket. The deputies struggled with Montoya’s hand at the front of his jacket, and Deputy Jackson shouted that he had “some contraband” and unzipped Montoya’s jacket. Two largé brick-like packages were revealed. A field test determined them to contain cocaine. The officers arrested Montoya and then turned their attention to the passenger, Franco, who also was seen to have bulges in his jacket and refused to raise his hands even though Deputy Jackson loudly and repeatedly ordered him to do so. Franco was forcibly removed from the car. All told, four packages were seized containing about 1,000 grams of cocaine. Held:

1. In reviewing a trial court’s decision on a motion to suppress, an appellate court’s responsibility is to ensure that there was a substantial basis for the decision. Evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility of the witnesses are adopted unless they are clearly erroneous. Further, because the trial court is the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if any evidence supports them. Morgan v. State, 195 Ga. App. 732, 735 (394 SE2d 639). The burden of proving that a search and seizure were lawful is on the State. OCGA § 17-5-30 (b); State v. Slaughter, 252 Ga. 435, 439 (315 SE2d 865).

2. Appellants contend the stop was pretextual, and that the search and seizure were unlawful because the officer had no reason to believe the “bulge” in Montoya’s jacket was contraband. We find, however, that after the valid stop the deputies’ actions throughout this detention were reasonable and were motivated by a genuine concern for their own protection and concern for the protection of others on the interstate that arose from the totality of the rapidly escalating situation confronting them and their law enforcement experience.

(a) Even the existence of an improper motivation on the part of an officer does not render a stop unreasonable. The validity of the stop depends not on the officer’s actual state of mind but on an objective assessment of his actions in light of all the facts and circumstances confronting him at the time. Larochelle v. State, 219 Ga. App. 792, 796 (466 SE2d 672). Montoya’s act of following too closely authorized the stop. The officers’ congratulatory remarks made after the seizure are irrelevant, if in an objective assessment of their actions in light of all the facts and circumstances confronting them at the time of the stop, the facts and circumstances prove a valid stop. Id.

(b) “Further, incident to the investigatory Terry [v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889)] stop, officers are allowed to ‘pat down’ a target ‘when the officer reasonably believes that it is necessary to protect him from attack. It is not unreasonable for officers to anticipate that those who are suspected of involvement in the drug trade might be armed.’ [Cits.]” Stewart v. State, 227 Ga. App. 659, 660-661 (490 SE2d 194).

Although Deputy Jackson did not immediately conduct a pat-down after the proper stop, after he saw the unusual bulge which Montoya nervously refused to identify, Deputy Jackson “tapped” the bulge. This act was authorized because at this point Deputy Jackson had reasonable cause to suspect Montoya might be concealing a weapon or other dangerous instrumentality, specifically including a bomb, and Deputy Jackson’s testimony shows that he was genuinely concerned about that possibility. Every act of the officer thereafter was reasonable in the circumstances confronting him at the time. “An officer may take appropriate self-protective measures when he lawfully confronts an individual and reasonably believes him to be armed or otherwise dangerous to the officer or others.” (Punctuation omitted.) Chaney v. State, 207 Ga. App. 72 (427 SE2d 63). The key question in all cases remains whether the measures taken by the officer were reasonable under the circumstances. Edwards v. State, 165 Ga. App. 527, 528 (301 SE2d 693); Chaney, supra; see Larochelle, supra. When a minimally intrusive pat-down evolves to an intrusive search, the question is whether in all the circumstances a suspicion that the detained suspect is armed would be reasonable. See Miller v. State, supra, 221 Ga. App. at 496.

Investigative detentions involving suspects in vehicles are fraught with danger to law enforcement officers. Edwards v. State, 224 Ga. App. 332 (480 SE2d 246). To protect himself during questioning, an officer must have only “a reasonable, articulable suspicion [that the detained suspect] is committing a crime. The risk of injury justifies [a] reasonably tailored protective reaction to a citizen’s threatening action. . . . The question is whether a reasonably prudent person in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Pace v. State, 219 Ga. App. 583, 585-586 (466 SE2d 254).

The videotape shows that Montoya’s refusal to remove his hand from his pocket, after repeated and shouted demands, reasonably excited Deputy Jackson’s suspicion that Montoya was carrying a bomb or some form of weapon and was “dangerous.” Chaney, supra.

Although appellants disparage, as an afterthought, Deputy Jackson’s testimony that he opened Montoya’s jacket because he thought it might contain a bomb, in fact it was not necessary that Jackson suspect a specific danger so long as his actions were reasonable in the circumstances confronting him. Larochelle, supra; see Jones v. State, 126 Ga. App. 841, 844-845 (192 SE2d 171). Nor does it matter that in addition to suspecting that Montoya was carrying a bomb, Deputy Jackson also mentally considered that the concealed object also might be money or some other object. Montoya was plainly concealing an object which he did not want the deputy to find, and he refused to take his hand away from his pocket despite repeated, shouted commands of two deputies. Therefore it was more likely than not that the object was a dangerous object or weapon or that a weapon would be used to keep the object from being discovered. This videotape demonstrates how quickly a situation can lurch to violence, leaving no time for deliberate and detached analysis. The deputies’ only protection in such a case is their training, experience, mature judgment, and instinct for survival, buttressed by a legally recognized protected right to control reasonably the explosive situation. He is authorized to ensure his safety in the circumstances confronting him. Edwards, supra, 224 Ga. App. at 335. The individual’s right under our laws is not a right to be free from search but is the right to be free from unreasonable search and seizure, and the deputy’s co-existing right reasonably “to [ejnsure his own safety,” id., and the safety of others necessarily limits a detainee’s right to privacy according to the circumstances of the individual case. We, therefore, reject the argument that because the deputy did not know precisely what was in Montoya’s jacket and pocket, he could not reasonably suspect Montoya was armed with some dangerous object and therefore could not act in a reasonable responsive manner to protect himself.

Thus, as the transcript shows the deputies were conducting a legitimate Terry search of Montoya’s jacket for weapons when the cocaine was discovered, the trial court’s findings supporting the denial of the motions to suppress were not clearly erroneous.

3. The seizure of appellant Franco’s cocaine was incident to a lawful arrest. See OCGA § 17-5-1.

Accordingly, the trial court correctly denied the motions to suppress.

Judgment affirmed.

Ruffin, J., concurs. Eldridge, J, concurs specially in judgment only.

Eldridge, Judge,

concurring specially in judgment only.

I concur in judgment only.

In Brown v. State, Case No. A97A1851, decided March 20, 1998 (transferred to the Supreme Court of Georgia, Case No. S98A0981), the majority articulated its “furtive movements doctrine” as justifying the search of a one-inch piece of paper under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), for “safety” reasons. Here, the majority again expands the standard for a Terry-stop protective search when the majority states: “When a minimally intrusive pat-down evolves to an intrusive search, the question is whether in all the circumstances a suspicion that the detained suspect is armed would be reasonable.” (Emphasis supplied.) This is not the law.

Terry v. Ohio permits a limited protective pat-down for weapons, after “reasonable suspicions” that a crime has been committed justify the stop. The majority opinion juxtaposes the standard and finds that the “reasonable suspicions” go to the protective search, rather than the justification for the stop. However, the search — pursuant to the stop — is strictly limited and “reasonable suspicions” cannot expand it beyond its basic limitations of a general, protective search, as has been suggested by the majority herein.

Decided March 10, 1998

Reconsideration denied April 3, 1998.

Christopher A. Frazier, Stephen G. Scarlett, for appellants.

Stephen D. Kelley, District Attorney, George C. Turner, Jr., Assistant District Attorney, for appellee.

A “protective search — permitted without . . . probable cause . . . must be strictly limited to that which is necessary for the discovery of weapons. ... If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed.” (Citations omitted.) Minnesota v. Dickerson, 508 U. S. 366, 373 (113 SC 2130, 124 LE2d 334) (1993).

Accordingly, in my view, a minimally intrusive protective pat-down under Terry may not “evolve into an intrusive search” without probable cause. And, in fact, such expansion of Terry is not necessary for the disposition of this case.

Here, the officers discovered the contraband pursuant to a legitimate Terry protective search of Montoya’s jacket, which the videotape shows was bulging out in front so far that it could have been concealing a bomb. The bulge was “hard”; Montoya would not identify it; he guarded it with his arms; and he would not remove his hands from near it when asked to do so. There was no way in which the officers could determine if Montoya had a weapon concealed in his jacket until it was unzipped and the “bulge” revealed. Then, once the hard, brown paper-wrapped bricks concealed in Montoya’s jacket were in plain view, the officers knew that they contained contraband, as demonstrated by testimony and the videotape together. Under the factual circumstances of this case, the trial court’s denial of appellants’ motions to suppress was not clearly erroneous.


author:
Blackburn, Judge.
      Andrews, Chief Judge,

text:
    A97A1873.
    STRAUGHTER v. J. H. HARVEY COMPANY, INC.
    (500 SE2d 353)
   Blackburn, Judge.

In this grocery store slip and fall case, Louvenia Straughter appeals the trial court’s grant of summary judgment to defendant J. H. Harvey Company. Because there are genuine issues of material fact regarding defendant’s liability, we reverse.

This Court reviews de novo the grant of a motion for summary judgment to determine whether the trial court properly found that no material issues of fact existed and that the movant was entitled to judgment as a matter of law. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Moreover, we are reminded by the Supreme Court that “the ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and . . . summary judgment is granted only when the evidence is plain, palpable, and undisputed.” Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403) (1997).

1. “[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. However, the plaintiff’s evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.” Id., modifying Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980).

“[CJonstructive knowledge may be established by showing that an employee of the proprietor was in the immediate area of the hazardous condition and could have easily seen the substance or that a foreign substance remained on the floor for such a time that ordinary diligence by the proprietor should have effected its discovery.” (Punctuation omitted.) Brown v. Piggly Wiggly Southern, 228 Ga. App. 629, 631 (3) (b) (493 SE2d 196) (1997).

In this case, Straughter testified that she walked into defendant’s store, headed straight for the produce department, and fell as she approached the tomatoes. She testified that there was a store employee in the produce section who should have witnessed her fall. She testified that this employee came to her right after the fall and picked up a green item on which she slipped. Viewed in the light most favorable to Straughter, this testimony supports an inference that the employee could easily have discovered the item had he looked. See Brown v. Piggly Wiggly Southern, supra. Accordingly, there is a jury question as to whether Harvey had constructive knowledge of the hazard.

Moreover, defendant has failed to submit an affidavit from this employee establishing that he could not have easily seen the item. OCGA § 24-4-22 provides that “[i]f a party has evidence in his power and within his reach by which he may repel a claim or charge against him but omits to produce it, or if he has more certain and satisfactory evidence in his power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against him is well founded; but this presumption may be rebutted.” Although defendant contends that there was no employee in the produce department at the time of the incident, the jury would be entitled to find otherwise. Under OCGA § 24-4-22, defendant’s failure to produce testimony from this employee would allow the jury to conclude that the employee could easily have seen the item, and that defendant should thus be charged with constructive knowledge.

The dissent contends that, notwithstanding this testimony, defendant was entitled to summary judgment because Straughter could not establish exactly how long the item had been on the floor before her fall. However, we have previously held that, in order to withstand a motion for summary judgment, a plaintiff need not show how long a substance has been on the floor unless the defendant has established that reasonable inspection procedures were in place and followed at the time of the incident. See Fussell v. Jimbo’s Log Kitchen, 227 Ga. App. 161, 165-166 (489 SE2d 71) (1997) (whole court); Newell v. Great A & P Tea Co., 222 Ga. App. 884, 886-887 (476 SE2d 631) (1996); Sheriff v. Hosp. Auth. of Houston County, 221 Ga. App. 14, 15 (471 SE2d 3) (1996) (whole court); Piggly Wiggly Southern v. Brown, 219 Ga. App. 614, 616 (468 SE2d 387) (1995) (whole court); Daniel v. John Q. Carter Enterprises, 218 Ga. App. 223, 225 (460 SE2d 838) (1995) (whole court); Burke v. Bi-Lo, 212 Ga. App. 115, 117 (441 SE2d 429) (1994); Jackson v. Wal-Mart Stores, 206 Ga. App. 165, 169 (424 SE2d 845) (1992); Winn-Dixie of Greenville v. Ramey, 186 Ga. App. 257, 259 (366 SE2d 785) (1988).

In this case, there is no admissible evidence in the record that defendant followed a reasonable inspection and sweeping policy on the date in question. Defendant submitted the affidavit of its produce manager, stating that the store had a policy of sweeping the entire floor every hour and the produce department floor every three hours. However, the affidavit does not state that such policy was in fact carried out on the date in question. Although the affidavit attaches what it refers to as “sweep cards” for the grocery and produce departments, no attempt is made to authenticate these cards as business records or to explain the entries thereon. Accordingly, as there is no admissible evidence that defendant followed a reasonable inspection and cleaning procedure, defendant can be charged with constructive knowledge even if plaintiff cannot show how long the substance had been on the floor. See Piggly Wiggly Southern v. Brown, supra.

Moreover, defendant has not submitted affidavits from the employee or employees who actually carried out the purported inspections and sweeping on the date in question. Since defendant has failed to present evidence from these material witnesses within its control, OCGA § 24-4-22 allows an inference to be drawn that their testimony would show that they did have actual or constructive knowledge of the hazard but negligently failed to remove it.

Finally, the sweep cards relied upon by defendant, even if admissible, do not in fact establish that defendant followed reasonable inspection and cleaning policies on the date in question. First, the entries on the sweep cards are not readily decipherable to an untrained reader, and no explanation is given in the accompanying affidavit. For example, the grocery department sweep cards contain what appear to be time entries that do not correspond to actual times, e.g., “1570,” “1374,” “1690,” “2065,” and “2082.” No explanation is given as to what these cryptic entries mean. Moreover, it is not readily apparent which of the entries on the sweep cards, if any, relate to the date in question. Furthermore, the cards do not appear to substantiate the claim in the accompanying affidavit that the store and the produce department are swept every hour and every three hours, respectively. Accordingly, even if the cards were admissible, they do not establish defendant’s compliance with reasonable inspection and cleaning procedures.

With respect to the second prong of the Robinson test, the evidence shows that plaintiff slipped on a small green item which was smashed when picked up by a store employee at the spot of her fall. Plaintiff testified that she did not know if she would have been able to see the item had she looked down at the floor, since the floor in the produce department was gray with splotches of green or blue therein. Under Robinson, whether plaintiff exercised ordinary care for her own safety under these circumstances is a question for the jury. Accordingly, as factual issues remain as to Harvey’s liability, the trial court erred in granting summary judgment to Harvey.

2. The dissent dismisses the Supreme Court’s recent ruling in Robinson, stating that, although Robinson modified the second prong of the Alterman Foods analysis dealing with proof of the plaintiff’s knowledge of the hazard, it left intact the first Alterman Foods prong concerning the defendant’s knowledge. It is indeed regrettable that the Supreme Court did not squarely address the first prong in Robinson, as the issue on appeal in that case involved the plaintiff’s knowledge of the hazard. However, the clear thrust of the opinion was an exhortation to avoid creating impossible hurdles for slip and fall plaintiffs at the summary judgment stage. This was made clear in the Court’s conclusion: “In sum, we remind members of the judiciary that the ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.” (Emphasis supplied.) Id. at 748.

However, rather than heed the Supreme Court’s admonition to “lighten the load placed on plaintiffs by more recent judicial decisions,” Robinson, supra at 748, the dissent proposes to increase the burden on plaintiffs by overruling a long line of cases standing for the proposition that a plaintiff, in order to withstand a motion for summary judgment, need not show how long a substance has been on the floor unless the defendant has established that reasonable inspection procedures were in place and followed at the time of the incident. See Fussell, supra; Sheriff, supra; Newell, supra; Daniel, supra; Jackson, supra; Ramey, supra; Piggly Wiggly Southern v. Brown, supra; Burke, supra. In essence, the dissent wishes to establish as an absolute rule that, even if a defendant admits it had no inspection and cleaning procedures in place, a plaintiff cannot prevail, indeed cannot get a trial, unless he can prove how long a particular substance has been on the floor.

Such a rule is clearly contrary to the Supreme Court’s mandate in Robinson, as it would create a nearly impossible barrier to most plaintiffs in slip and fall cases. In most cases, a plaintiff will have no means of establishing exactly how long a substance has been on the floor, particularly if it is not a substance such as ice or ice cream that melts over time. Most of the relevant witnesses are either store employees, who are under the control of the defendant and thus have an incentive to deny knowledge, or other patrons who may have seen the substance on the floor but who are unknown to the plaintiff. Therefore, rather than “lighten the load” on plaintiffs, the dissent would merely shift the focus of slip and fall jurisprudence to the first prong of Alterman Foods and place yet another impossible hurdle in front of most plaintiffs. Such a proposal is contrary to Robinson, and we decline to adopt it.

Judgment reversed.

McMurray, P. J., Pope, P. J., Beasley, Johnson, Smith, Ruffin, JJ., and Senior Appellate Judge Harold R. Banke concur. Andrews, C. J., and Birdsong, P. J., dissent.

Andrews, Chief Judge,

dissenting.

Because there was no evidence to support Slaughter’s claim that J. H. Harvey Company, Inc. had actual or constructive knowledge of the hazard on which she slipped and fell, the trial court properly granted summary judgment in favor of Harvey.

In order to recover, Straughter had the burden of establishing (1) that Harvey had actual or constructive knowledge of the hazardous condition which caused the slip and fall, and (2) that she lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of Harvey. Alterman Foods v. Ligon, 246 Ga. 620, 622-623 (272 SE2d 327) (1980), modified in part by Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997). Although Robinson modified the above stated second prong of the Alterman Foods analysis dealing with proof of the plaintiff’s knowledge of the hazard, it left intact the first Alterman Foods prong concerning the defendant’s knowledge. Sharfuddin v. Drug Emporium, 230 Ga. App. 679, 680-681 (498 SE2d 748) (1998). The issue in this case concerns application of the first prong of Alterman Foods.

There is no evidence that Harvey had actual knowledge of the hazard before Straughter stepped on it. In the absence of evidence that the defendant had actual knowledge of the hazard, a plaintiff can show that the defendant had constructive knowledge either by showing the hazard had been there so long that the defendant should have discovered it by reasonable inspection, or by showing that an employee of the defendant was in the immediate area of the hazard and could have easily seen and removed it. Banks v. Colonial Stores, 117 Ga. App. 581, 584-585 (161 SE2d 366) (1968); Alterman Foods, supra at 622-623. On the present record, there is no evidence showing any Harvey employee was in the area and could easily have seen and removed the hazard.

In her deposition, Straughter testified she slipped and fell at Harvey’s “a little after 11[:00 a.m.]” on March 30, 1994. She walked into the store, headed straight for the produce department, and fell as she approached the tomatoes. Although she “look[ed] ahead” as she walked, she did not see anything on the floor, a failure she attributed to the color of the tile. After she fell, however, an employee picked up “something green” on which she apparently slipped. She did not know what the substance was or how long it had been on the floor before she fell. There was no evidence as to how the substance got on the floor. Straughter saw no one in the area before her fall. Although Straughter testified that after she fell, two store employees came over to her along with other people, she makes no claim nor is there any evidence that any store employee was in the immediate area of the hazard and could have easily seen and removed it. She testified that after she fell, “a guy in the produce area” ran to her side and helped her and then “another produce man in Harvey’s that worked there” arrived and found “a little something . . . something greenery” where she had slipped. When asked if any store employee saw her fall, she responded that “the guy that was in the produce section, he should have.” Harvey’s produce manager testified that at 11:30 a.m. he was standing in an adjacent back room of the produce department about 15 yards away from where Straughter fell and, through a window in a door, saw Straughter fall; however, he could not see the floor from his vantage point. The produce manager testified that when Straughter fell, there were no store employees in the produce department. This evidence provides no basis for the inference drawn by the majority that Harvey had constructive knowledge of the hazard because one of its employees was in the immediate area of the hazard and could have easily seen and removed it. The only evidence of how close a Harvey employee was to the hazard was the testimony of the Harvey produce manager that he saw Straughter fall while standing about 15 yards away in an adjacent room of the produce section in a position where he could not see the floor at the site of the fall. Assuming that Straughter saw another Harvey employee in the produce area before she fell and that this employee also saw her fall and ran to her side, there is no evidence as to how far away from the hazard this employee was located. There is simply no evidence that Harvey had constructive knowledge on the basis that any Harvey employee “was in the immediate area of the dangerous condition and could have easily seen the substance. . . .” Banks, supra at 585. Any inference that a Harvey employee was in this position is pure speculation.

Not only is there no evidence that a Harvey employee was in the immediate area of the hazard, but Straughter also testified that the foreign substance on which she slipped was so small and of such a color in comparison to the color of the floor that she did not know whether she could have seen it on the floor even if she had looked down before she slipped. If Straughter was unsure the substance would have been visible to her from a standing position immediately before she stepped on it, logic dictates that even if there had been a store employee somewhere in the immediate area, the employee could not have easily seen and removed a substance which Straughter could not see. Whisby v. Bruno’s Food Stores, 228 Ga. App. 597, 598 (492 SE2d 338) (1997).

Construed in favor of Straughter, the evidence, at best, supports the mere possibility that a Harvey employee may have been in the immediate area of the hazard and speculation that any such employee could have easily seen and removed the hazard. An inference must be reasonable for it to give rise to a genuine issue of fact. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991). A reasonable inference sufficient to preclude summary judgment cannot be based on mere possibility, conjecture, or speculation. Pafford v. Biomet, 264 Ga. 540, 544 (448 SE2d 347) (1994); Butler v. Huckabee, 209 Ga. App. 761, 762 (434 SE2d 576) (1993).

The majority attempts to bolster its speculative inference by finding that OCGA § 24-4-22 creates a rebuttable presumption that a Harvey employee was in the immediate area and could have easily seen the hazard because Harvey failed to produce an affidavit from the employee stating to the contrary. OCGA § 24-4-22 provides that: “If a party has evidence in his power and within his reach by which he may repel a claim or charge against him but omits to produce it, or if he has more certain and satisfactory evidence in his power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against him is well founded; but this presumption may be rebutted.”

This Code section penalizes either party by an adverse presumption of fact for withholding evidence within their power to produce and for relying on evidence of a weaker nature. Fields v. Yellow Cab Co. &c., 80 Ga. App. 569, 571 (56 SE2d 845) (1949); Speagle v. Nationwide Mut. Fire Ins. Co., 138 Ga. App. 384, 387 (226 SE2d 459) (1976). The section has no application to Harvey in this case. First, there is no evidence that Harvey withheld evidence. Harvey produced an affidavit from the produce manager who saw Straughter fall, and the manager stated that he saw no Harvey employee in that area at the time. Although Straughter says there was another employee in the produce section who should have been able to see her fall, she did not give any indication as to the distance that employee was from her location when she fell. Harvey attempted to ascertain the identity of this employee during Slaughter’s deposition, but she was able to give only a general description. There is no evidence in the record that Harvey was able to identity the employee that Straughter saw. The record is devoid of any evidence that Harvey withheld evidence within its control. Speagle, supra at 387-388. Second, it is clear from the record in this case that Straughter, who claims she saw a Harvey employee in the produce section before she fell, had evidence within her control as to how far that employee was located from the hazard. Yet she gave no testimony and provided no affidavit establishing this fact in response to Harvey’s motion for summary judgment. If any OCGA § 24-4-22 presumption applies in this case, it is a presumption against Straughter that no Harvey employee was in the immediate area of the hazard. In fact, the very assertion that a Harvey employee was in the immediate area and could have easily seen the hazard is totally of the majority’s making, since Straughter made no such claim in the trial court or on appeal.

Accordingly, in order for Straughter to recover, she was required to show that Harvey had constructive knowledge by producing evidence that the hazardous substance had been there long enough that a reasonable inspection would have discovered it. However, as Straughter concedes, she is unable to show this because there is no evidence of how long the substance had been on the floor before she slipped and fell.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” (Citations and emphasis omitted.) Lau’s Corp., supra at 491.

Accordingly, Harvey was entitled to summary judgment by “pointing out the absence of evidence in the record to support [Straughter’s] claim that it had constructive knowledge.” Johnson v. Autozone, 219 Ga. App. 390, 393 (465 SE2d 463) (1995). In other words, Harvey could “simply point out the absence of any evidence in the record showing that the foreign substance had been on the premises for a period of time sufficient to have been discovered by a reasonable inspection of the premises.” Id. at 394; Lau’s Corp., supra. Because without such proof, “it would not be possible to determine whether [Harvey] had been afforded a reasonable time within which to inspect and remove the hazard.” Banks, supra at 585.

Harvey had no burden at trial to produce evidence to demonstrate its lack of constructive knowledge of the hazard. Accordingly, under Lau’s Corp., Harvey had no burden on summary judgment to affirmatively produce evidence to disprove Straughter’s claim that it had constructive knowledge of the hazard. After Harvey discharged its burden on summary judgment by pointing to the absence of evidence to support Straughter’s claim, Straughter could not rest on her pleadings, but was required to produce evidence sufficient to create a genuine factual issue, i.e., a factual issue sufficient to allow a reasonable jury to reach a verdict in her favor at trial. Id. at 491. Straughter was unable to produce such evidence because there was no evidence showing that the substance had been on the floor long enough for a jury to conclude that Harvey would have discovered it during a reasonable inspection of the premises. It follows that, if the evidence before the trial court on summary judgment would not be sufficient to withstand a motion by Harvey for a directed verdict at trial, then Harvey was entitled to summary judgment in order to avoid the expense of a trial. See id.; OCGA §§ 9-11-50 (a); 9-11-56 (c); Porter v. Felker, 261 Ga. 421 (405 SE2d 31) (1991); Eiberger v. West, 247 Ga. 767, 769 (281 SE2d 148) (1981) (summary judgment appropriate on evidence that would compel a directed verdict at trial); NeSmith v. Ellerbee, 203 Ga. App. 65, 68-69 (416 SE2d 364) (1992) (when a directed verdict at trial is inevitable, summary judgment is appropriate); Sharfuddin, supra at 684. For these reasons, the trial court correctly granted summary judgment in favor of Harvey.

The majority concludes that, even though there is no evidence as to how long the substance had been on the floor, summary judgment in favor of Harvey was inappropriate because Harvey failed to produce evidence that it adhered to a reasonable inspection policy on the day of the slip and fall. As authority for this position, the majority cites a line of cases decided by this Court which state that a slip and fall plaintiff responding to a summary judgment motion need not produce evidence of how long the substance has been on the floor until the defendant proprietor produces evidence that it adhered to reasonable inspection procedures. In support of this position, the majority cites: Fussell v. Jimbo’s Log Kitchen, 227 Ga. App. 161, 165-166 (489 SE2d 71) (1997); Newell v. Great A & P Tea Co., 222 Ga. App. 884, 886-887 (476 SE2d 631) (1996); Sheriff v. Hosp. Auth. of Houston County, 221 Ga. App. 14, 15 (471 SE2d 3) (1996); Piggly Wiggly Southern v. Brown, 219 Ga. App. 614, 616 (468 SE2d 387) (1995); Daniel v. John Q. Carter Enterprises, 218 Ga. App. 223, 225 (460 SE2d 838) (1995); Burke v. Bi-Lo, 212 Ga. App. 115, 117 (441 SE2d 429) (1994); Jackson v. Wal-Mart Stores, 206 Ga. App. 165, 169 (424 SE2d 845) (1992); and Winn-Dixie of Greenville v. Ramey, 186 Ga. App. 257, 259 (366 SE2d 785) (1988).

What the majority fails to acknowledge or address is that the above cited cases are contradicted by a competing line of cases decided by this Court as shown by our whole court decisions in Sharfuddin, supra; Hartley v. Macon Bacon Tune, 227 Ga. App. 679, 684-685 (490 SE2d 403) (1997); Blake v. Kroger Co., 224 Ga. App. 140, 142-150 (480 SE2d 199) (1996); and Johnson, supra at 393. In direct contradiction of the authority relied upon by the majority, these cases hold that, based on the Supreme Court decision in Lau’s Corp., supra, a defendant proprietor moving for summary judgment has no burden to produce evidence of inspection procedures and can rely on the absence of evidence as to how long the hazard was on the floor to obtain summary judgment. The majority does not overrule these cases but simply ignores them.

The latter line of cases is the better reasoned authority because these cases are based on the Supreme Court’s decision in Lau’s Corp., supra. Qn the other hand, the cases relied upon by the majority derive their authority from pre-Lau’s Corp. summary judgment procedure. Accordingly, the above cited cases relied upon by the majority should be overruled to the extent they are contrary to the decision in Lau’s Corp.

Under Lau’s Corp., supra, and Robinson, supra, a defendant proprietor moving for summary judgment has no burden to produce evidence to negate the plaintiff’s theory that the proprietor had actual or constructive knowledge of the hazard. The line of cases relied upon by the majority directly contradicts this firmly established principle. For example, Fussell, supra, the most recent case relied upon by the majority, places a burden upon the defendant to produce evidence of compliance with inspection procedures before the defendant can point to the absence of any evidence showing how long the substance had been on the floor. The only authority cited by Fussell for requiring the defendant to first produce evidence of compliance with reasonable inspection procedures is Daniel, supra (another case relied upon by the majority). Daniel dealt with whether constructive knowledge could be imputed to a defendant on the theory that, had the proprietor conducted a reasonable inspection of the premises, it would have discovered the hazard prior to the slip and fall. Daniel cited Ramey, supra (a pre-Law’s Corp. case relied upon by the majority) as support for the following statements: “In seeking summary judgment, the defendant [proprietor] has the initial burden of showing that this theory of recovery is not viable by demonstrating that it exercised reasonable care in inspecting the premises. Ramey, supra at 259. This burden may be carried by evidence of compliance with reasonable inspection procedures. [Cit.] . . . Once a defendant [proprietor] demonstrates a lack of actionable constructive knowledge by compliance with reasonable inspection procedures, the burden shifts back to the plaintiff to show how long the foreign substance had been allowed to remain on the floor. Ramey, supra at 259. ... Of course, ‘in the absence of evidence that (the defendant) conducted a reasonable inspection of the premises that would have discovered the foreign substance that caused the slickness on the floor, (the plaintiff would not be) required to present evidence establishing the length of time that the substance had been allowed to remain on the floor.’ (Cits.) Jackson[, supra].” Daniel, supra at 224-225. The quoted statement from Jackson, cited by Daniel, also relied on Ramey as authority.

None of the authority cited by Daniel for the above quoted burden-shifting rule has any continuing viability after the decision in Lau’s Corp., which specifically “overrule[d] anything to the contrary.” Id. at 495. “Ramey, supra, which was decided in 1988 prior to the Supreme Court’s decision in Lau’s Corp., supra, found that, because the proprietor failed to produce any evidence that it conducted a reasonable inspection of the premises, the proprietor failed to carry its initial evidentiary burden as the movant for summary judgment to show that the plaintiff’s theory of recovery was not viable. Ramey, supra at 258-259; see also Food Giant v. Cooke, 186 Ga. App. 253, 254-256 (366 SE2d 781) (1988) (decided the same day as Ramey and addressed the same constructive knowledge issue on summary judgment). Both Ramey and Cooke held that, since the proprietors did not meet their initial evidentiary burden on summary judgment, the burden did not shift to the plaintiff in response to summary judgment to produce evidence of how long the hazard had been on the floor. Accordingly, both Ramey and Cooke were based on the conclusion that summary judgment could not be granted to the proprietor because the ‘(proprietor’s) evidence did not negate the possibility that, under the existing circumstances, its failure to have discovered the presence of the (hazard on the floor) was the result of its failure to exercise reasonable care in inspecting its premises. See Winn-Dixie of Greenville v. Ramey, supra.[Cooke], supra at 256.” Blake, supra at 149 (Andrews, J., concurring specially).

As demonstrated above, the line of authority relied upon by the majority perpetuates the above stated burden-shifting rule after Lau’s Corp. eliminated it. After Lau’s Corp., this burden-shifting rule is no longer a means to deny summary judgment to a defendant proprietor where the proprietor does not produce evidence of compliance with reasonable inspection procedures, but there is no evidence of how long the hazard had existed on the premises prior to the slip and fall. Under Lau’s Corp., “[a] defendant [moving for summary judgment] who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support [at least one essential element of] the nonmoving party’s case.” Id. at 491, 495. Thus, a defendant proprietor moving for summary judgment on the basis that it lacked constructive knowledge of the hazard is not required to produce evidence that it conducted a reasonable inspection of the premises in order to shift the burden to the plaintiff to show how long the hazard had existed on the premises. This Court should apply its whole court decisions in Sharfuddin, supra; Hartley, supra; Blake, supra; and Johnson, supra, which reaffirm this principle, and overrule the cases relied upon by the majority which hold to the contrary.

Even if the evidence of sweeping and inspection produced by Harvey was not sufficient to show as a matter of law that it exercised reasonable care in inspecting and keeping the premises safe, Harvey was still entitled to summary judgment in this case because there was no evidence of how long the hazard had been on the floor. Without any evidence of how long the substance had been on the floor before Straughter slipped on it and fell, a trier of fact would be left to speculate as to whether the hazard had been on the floor for a couple of minutes or for hours prior to the slip and fall. Accordingly, it is impossible to conclude, without speculating, that Harvey would have discovered the hazard prior to the slip and fall by adherence to a reasonable inspection policy. Johnson, supra at 394; Blake, supra.

Decided March 20, 1998

Reconsideration denied April 3, 1998

Kunes & Kunes, G. Gerald Kunes, for appellant.

Accordingly, the majority decision, which prevents Harvey from asserting the defense that there is no evidence of how long the hazard was on the floor without first producing evidence of adherence to inspection procedures, has the effect of denying Harvey its right to assert a proximate cause defense on summary judgment. Even if the evidence showed that Harvey made no inspection, and thus failed in its duty to reasonably inspect to keep the premises safe, this is not a basis upon which a jury could award damages to Straughter because Straughter must also show that Harvey’s failure was the proximate cause of her injury. Harvey’s proximate cause defense is that, even assuming it failed to inspect the premises, if there is no evidence of how long the hazard was on the floor, a jury could not conclude, without speculating, that it had been there long enough to have been discovered by a reasonable inspection. For example, the hazard could have been on the floor for just a couple of minutes prior to Straughter’s fall and therefore would have been undiscoverable by a reasonable inspection. It follows that, without evidence of how long the hazard had been there, there is no reasonable basis for a jury to conclude that Harvey’s failure to inspect was the proximate cause of the injury.

The majority opinion denies slip and fall defendants the same ability to assert proximate cause defenses on summary judgment that is available to all other tort defendants. In doing so, the majority ignores the clear rules applicable to summary judgment established by the Supreme Court in Lau’s Corp., supra, and the decisions of this Court following those rules. Contrary to the majority’s proclamation, nothing in the Supreme Court’s effort in Robinson, supra, to “lighten the load” on slip and fall plaintiffs under the second prong of Alterman Foods, supra, supports this decision.

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

Clyatt, Clyatt, Wallace & DeVaughn, Robert M. Clyatt, Joni B. Parker, for appellee.


text:
    A97A2136.
    COTTON STATES MUTUAL INSURANCE COMPANY v. WALKER et al.
    (500 SE2d 587)
   Beasley, Judge.

Chris and Melissa Walker sued Cotton States Mutual Insurance Company to recover under their homeowner’s policy of insurance. This appeal addresses the legal validity of the trial court’s denial of Cotton States’ motion for summary judgment.

On May 6, 1995, when the Walkers’ home was insured under a general homeowner’s policy of insurance issued by Cotton States, fire destroyed the house and its contents. Among the provisions of the policy were requirements that: in the event of a loss, the Walkers send to Cotton States a signed, sworn proof of loss containing certain specified information; the proof of loss be sent within 60 days after Cotton States’ request; and a prohibition against the Walkers’ filing suit against Cotton States unless they had complied with all provisions of the policy.

1. The entire record is considered de novo when reviewing denial of a motion for summary judgment to determine whether or not genuine issues of material fact exist which would preclude summary judgment or whether, given the undisputed facts, the movant is entitled to judgment as a matter of law. Cambridge Mut. Fire Ins. Co. v. Okonkwo, 218 Ga. App. 59, 61 (1) (460 SE2d 302) (1995). If a defendant who will not bear the burden of proof at trial points to an absence of evidence to support plaintiff’s case, the plaintiff, to avoid summary judgment, may not rest on his pleadings, but must point to specific evidence giving rise to a triable issue. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The trial court was right. There are issues of fact to be decided by a jury.

First of all, the policy does not include the provision necessary to prevent suit solely on the basis that the Walkers failed to file proof of loss within 60 days after the insurer’s request. Case law establishes that “a mere failure to furnish proper proofs of loss within the 60-day period will not work a forfeiture of the policy unless there is an express stipulation to that effect. [Cits.]” (Emphasis omitted.) Progressive Mut. Ins. Co. v. Burrell Motors, 112 Ga. App. 88 (1) (143 SE2d 757) (1965). The opinion on motion for rehearing in that case emphasizes that an express stipulation is required and that a statement that full compliance with all requirements in the policy is necessary is not enough. Accord Farm Bureau Mut. Ins. Co. v. Bennett, 114 Ga. App. 623, 624 (2) (152 SE2d 609) (1966); Parris v. Great Central Ins. Co., 148 Ga. App. 277, 278 (1) (251 SE2d 109) (1978); Canal Ins. Co. v. Savannah Bank &c. Co., 181 Ga. App. 520, 521 (2) (352 SE2d 835) (1987).

The requirement for proof of loss is set out in the portion of the policy spelling out “Your Duties After Loss.” It does not state that unless this is accomplished within the 60 days, the insurer will have no liability for payment. Nor does the provision regarding “Suit Against Us” include an express forfeiture stipulation but simply states that “No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss.” This is insufficient, as the cases cited above hold. Nowhere in the policy is there the express stipulation that allows forfeiture of benefits if the proof of loss is late.

Consequently, Cotton States was not entitled to summary judgment on the ground that the proof of loss was filed beyond the time provided in the policy and thereby constituted a forfeiture of payment of the claim.

2. Even if this were not so, the issue would remain whether the insurer’s agent, Barbara Stewart, waived the 60-day requirement for sending the proof of loss called for by the policy in paragraph 2 (g) of the section entitled “Conditions.”

By letter dated and mailed June 27, 1995, Special Claims Representative Stewart notified one of the insureds, Chris Walker, that the insurer had received notice of the fire at his residence on the sixth day of the previous month. One of the requests made was for submission of a completed proof of loss form, which was enclosed, in accordance with paragraph 2 (g).

Prior to that letter, and upon instruction from their attorney, the insureds had prepared an inventory of the contents of their home destroyed by the fire. It gave a listing, arranged by room and category, of each item of personal property, the age of each item and the cost of each. One of the express duties imposed on an insured in paragraph 2 of the policy Conditions is: “prepare an inventory of damaged personal property showing the quantity, description, actual cash value and amount of loss.”

Melissa Walker, for herself and as agent for her husband Chris, met with Claims Representative Barbara Stewart at the office of the Walkers’ attorney on July 7. Stewart recorded the interview. The inventory was presented to her, but she rejected it because it was not on the form which had been sent to Chris and she gave another copy of it to Melissa. According to Melissa, Stewart advised that “every bit” of the inventory had to be redone because “it was not in the proper format.” She instructed Melissa to “shop around and double-check on all the prices to make sure everything was accurate ... to go into further detail and to do more research on it.” Melissa had done that to an extent but had not gone into great detail in finding actual prices and had not called people who had given them gifts to find out those prices.

Of critical importance on the issue of waiver is the following further testimony of Melissa with respect to the instructions Stewart gave to her at that meeting. She testified that Stewart “told [her]. . . to take [her] time and that [she] didn’t háve to be in any big hurry, because it would take plenty of research to do it.” Melissa confirmed that it did take a lot of research, and that she “had to go into great detail.” She repeated later: “Like I said, she just told me to take my time, that it would take plenty of time to go into great detail.” Considering that the three-bedroom house and all the contents of the house and garage and breezeway were lost, a jury could find such testimony credible. After all, ten days had already passed since the request was sent to Chris, which would have left only fifty, and Melissa herself would have had sixty more, counting the meeting as the time when the insurer made the request to her.

The form was worked on and finally completed and dated May 1, 1996, and sent. In explanation of the long time it took to complete the form, Melissa pointed out in her affidavit that the insurer “placed virtually impossible conditions on what would suffice for the proof of loss, to wit: finding the place of purchase of personal property which was given to [her] and her husband as gifts; the purchase price of those gifts; the depreciated value of personal property which has no market for resale.” Considering this and what had been said at the meeting, Melissa had no doubt that the Walkers complied with Stewart’s instructions.

As stated above, the policy provides as a condition that “No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss.” The insurer never did send a written request for proof of loss to Melissa, one of the two insureds, but the representative did hand her a form at the meeting she attended for herself and her husband. With respect to the provision that the proof of loss be sent “within 60 days after our request,” the issue for the jury to resolve is whether that was waived by the instructions of Stewart at the meeting.

“ ‘[A]n insurer can be held to have waived a limitation period when its “investigations, negotiations, or assurances ... up to and past the period of limitation . . . led the insured to believe the limitation would not apply.” (Cit.)’ ” Appleby v. Merastar Ins. Co., 223 Ga. App. 463, 464 (477 SE2d 887) (1996). Waiver can occur “only where the insurer’s conduct reasonably leads the insured to believe that a strict compliance with the limitation provision would not be insisted upon.” (Citations and punctuation omitted.) Id. It would not be unreasonable to infer that, since the request to Melissa as an insured was informal and oral, the instruction to her for herself and as agent for her husband, without a time limitation, also was intended to be an informal and oral waiver of the 60-day period contained in the very same condition of the policy. Melissa was entitled, just as much as Chris was, to receive a request before she had a duty to submit a proof of loss. See Decatur Fed. Sav. &c. Assn. v. York Ins. Co., 147 Ga. App. 797, 799 (4) (250 SE2d 524) (1978) (duty to file proof of loss does not arise until notice provided for by policy is given).

3. There remains one problem to resolve. Although the suit was filed within the contractual limit of one year after the date of the loss (fire May 6, 1995, suit filed May 3, 1996), Condition No. 10 of the policy allows the insurer 60 days after receiving the proof of loss in which to pay the claim. This has been construed once to mean that the proof of loss must be filed “at least 60 days prior to the expiration of the contractual limitation period for filing.” Parris, supra, 148 Ga. App. at 278 (1). The proof of loss is dated May 1, two days before the Walkers filed suit so as to meet the contractual limitation. But, unlike the policy in Farm Bureau Mut. Ins. Co., supra, the policy does not contain such a requirement as a condition of suit, and it must be construed against the insurer, which prepared it. Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 716 (4) (470 SE2d 659) (1996); Decatur Fed. Sav. &c. Assn., supra at 798 (2); OCGA § 13-2-2 (5).

If the condition is construed as it was in Parris, and an express stipulation on this point is not required by law, then the suit would be premature as 60 days had not yet run from the time the insurer received the proof of loss, which is when its liability for payment would commence. Buffalo Ins. Co. v. Star Photo &c. Co., 120 Ga. App. 697, 702 (1) (a) (172 SE2d 159) (1969) (“ ‘demand for payment . . . must be made at a time when a demand for immediate payment is in order’ ”); Godley v. North River Ins. Co., 51 Ga. App. 242 (1) (180 SE 385) (1935) (suit can be brought provided, among other things, it is “in accordance with any . . . provisions in the policy fixing the beginning of liability at a specified time after receipt of notice or proof of loss and limiting the time for suit after the loss”). Cotton States does not take the position that the suit was premature.

If an express stipulation is not needed to preclude suit until sixty days have passed since the insurer received the proof of loss, then there still remains a jury question whether the waiver, if there was one, included also the sixty-day opportunity for Cotton States to respond in advance of suit. It is for a jury to decide if Cotton States’ instructions to Walker, including that she take her time preparing the proof of loss and that she did not have to hurry, waived the sixty-day deadline in advance of the one-year contractual limitation period in which to submit the proof of loss. Cotton States does not contend that suit was too late. If the jury finds a waiver, then the filing of the suit “within one year after the date of loss,” as provided in the policy, was timely.

Decided March 19, 1998

Reconsideration denied April 3, 1998.

Swift, Currie, McGhee & Hiers, Michael H. Schroder, Joan P. Shaker, for appellant.

Weaver & Weaver, George W. Weaver, for appellees.

The trial court correctly denied summary judgment to Cotton States, the insurer.

Judgment affirmed.

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