author: Pope, Judge.

text:
    A89A2296.
    RAYMER et al. v. FOSTER & COOPER, INC.
    (393 SE2d 49)
   Pope, Judge.

Plaintiffs/appellants, the Atlanta Board of Education and members of the Atlanta Board of Education (hereinafter Board), entered into an agreement with defendant/appellee Foster & Cooper, Inc., pursuant to the terms of which Foster & Cooper contracted to act as general contractor for the construction of Southside Comprehensive High School in Atlanta, Georgia. The agreement contained an arbitration clause, whereby the parties agreed that any claims or disputes arising out of the project would be submitted to arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association.

Foster & Cooper filed a demand for arbitration on February 6, 1987, seeking damages in excess of one million dollars for delays and disruptions, interference with contractual relations and other costs and expenses it contended should be paid by the Board. Foster & Cooper subsequently amended its demand to include claims against the Board on behalf of its mechanical subcontractor, 3H Industries, Inc. On March 8, 1988, the Board filed its Complaint for Declaratory Judgment and Equitable Relief in the Fulton County Superior Court in which it sought a stay of the arbitration proceedings and a declaration of rights as to the effect of an agreement between Foster & Cooper and two of its subcontractors and the effect of a previous arbitration award on a portion of the claims asserted by Foster & Cooper in its demand for arbitration.

The trial court initially issued a fifteen-day restraining order enjoining Foster & Cooper from arbitrating certain of its claims. On March 21, 1988, the trial court entered an order denying without prejudice the Board’s claim for injunctive relief which permitted it to reassert “the issues presented in this lawsuit at the conclusion of the arbitration process.” The Board then filed a motion to the arbitration association seeking a declaration of rights as to the effect of certain agreements between Foster & Cooper and two of its subcontractors. This motion was denied and the Board filed a renewed motion for injunctive relief in the trial court. Foster & Cooper filed a motion for attorney fees contending that the filing of the renewed motion while the arbitration proceedings were pending was in violation of the trial court’s previous order. On July 8, 1988, the trial court entered an order denying the Board’s renewed motion for injunctive relief and granted Foster & Cooper’s motion for attorney fees.

Arbitration proceedings commenced on July 18, 1988, before a panel of three arbitrators chosen in accordance with the prior agreement of the parties. After five days of hearing extensive evidence on the issues, the arbitrators rendered their decision awarding Foster & Cooper a total of $727,796. Foster & Cooper filed a motion to confirm the arbitration award and for judgment on December 12, 1988. The Board, pursuant to an extension of time, filed its motion to vacate and or modify the award on January 11, 1989. Following a hearing, the trial court granted Foster & Cooper’s motion to confirm the arbitration award and entered judgment in its favor for $727,796 with interest. The trial court dismissed the Board’s complaint for declaratory judgment finding that all claims of the complaint had been determined in the arbitration proceeding. The Board filed its appeal to this court on April 18, 1989, seeking review of the trial court’s order affirming the arbitration award as well as the trial court’s order of July 8, 1988, assessing attorney fees against it for filing a renewed motion for injunctive relief during the pendency of the arbitration proceedings. Held:

1. “The standard of review of the trial court of an application to vacate an arbitrators’ award made in the case of a construction contract is governed by statute. OCGA § 9-9-93 reads in pertinent part: ‘The award shall be vacated on the application of a party who either participated in the arbitration or was served with a demand for arbitration if the court finds that the rights of that party were prejudiced by: (1) (c)orruption, fraud, or misconduct in procuring the award; (2) (p)artiality of an arbitrator appointed as a neutral; (3) (a)n overstepping by the arbitrators of their authority or such imperfect execution of it that a final and definite award upon the subject matter submitted was not made; or (4) (a) failure to follow the procedure of this part, unless the party applying to vacate the award continued with the arbitration with notice of this failure and without objection. . . .’ . . . These are the exclusive statutory grounds upon which the trial court may vacate an arbitrator’s award made in the context of a construction contract.” Cotton States Mut. Ins. Co. v. Nunnally Lumber Co., 176 Ga. App. 232, 236 (335 SE2d 708) (1985).

Without attempting to place its challenge to the award within this statutory scheme, the Board seems to suggest that the arbitrators were impartial or overstepped their authority by refusing to apply principles of res judicata, collateral estoppel, accord and satisfaction and the law applicable to pass through claims as stated in Department of Transp. v. Claussen Paving Co., 246 Ga. 807 (5) (273 SE2d 161) (1980). We find no merit to these claims.

(a) As stated supra, the Board specifically allocated a portion of the award ($87,850) to the claims of the mechanical and masonry subcontractors. In Claussen our Supreme Court held that “it is insufficient proof for a prime contractor who is suing an owner to prove that his subcontractor has sustained injury or damage through fault of the owner unless the prime contractor goes further and shows that he somehow is responsible to the subcontractor for those damages.” (Emphasis supplied.) Id. at 810-811. The Board thus argues that Foster & Cooper could not recover on behalf of its subcontractors because of prior agreements between them pursuant to which the subcontractors had agreed not to seek redress of their claims against Foster & Cooper. However, in the case at bar, unlike the situation in Claussen, Foster & Cooper presented evidence that any recovery from the Board arising out of the claims of these two subcontractors would be “passed on” to the subcontractors pursuant to the prior agreement of the parties. The Board argues, however, that this factor does not distinguish this case from Claussen because “that is exactly what the general contractor did [in that case]. It had assigned any recovery to its subcontractor. . . .” However, our reading of Claussen indicates that Claussen did not agree to “pass on” its recovery to its subcontractor, but rather had assigned “any claim it might have relating to . . . the contract” to its subcontractor. (Emphasis supplied.) Id. at 810. Moreover, Claussen also involved the claims of a second subcontractor, and as to those claims the court specifically noted that “[t]here is no evidence in the transcript that Claussen would have to pass on to [its subcontractor] the amount of its recovery. . . .” Id. at 810. We agree, therefore, that this case is distinguishable from Claus-sen insofar as Foster & Cooper presented evidence showing that it was required to “pass on” any recovery awarded on the basis of the claims of the masonry and mechanical subcontractor.

(b) The Board also argues that certain of the claims asserted on behalf of the mechanical subcontractor were barred by the doctrine of res judicata and collateral estoppel because claims involving that subcontractor had been presented at an earlier arbitration proceeding. The transcript shows, however, that the delay and disruption claim at issue here had not been presented at the first arbitration and that this claim would have been premature at that proceeding because at that time the project was not yet complete.

(c) The Board also challenges the $635,900 lump sum portion of the award, attempting to relitigate and reargue the extensive evidence presented during the five days of hearings. “[The arbitrators] had province to judge the credibility of the witnesses and the weight of the evidence and their apparent judgment is supported by the evidence.” Cotton States, supra at 236. Likewise, for the reasons stated above, the trial court did not err in dismissing the Board’s complaint for declaratory judgment.

2. The Board’s second enumeration assigns error to that portion of the trial court’s order of July 8, 1988, awarding attorney fees to Foster & Cooper. The record shows that the Board did not file an application to this court seeking review of the order awarding attorney fees at the time it was entered (see OCGA § 5-6-34), that the Board did not challenge this award in the trial court, and that the trial court did not rule on this award in its order confirming the arbitration. Consequently, since the notice of appeal was filed in this case on April 18, 1989, some nine months after entry of the order complained of, we are without jurisdiction to consider any enumerations of error relating to this earlier award. See, e.g., Rockdale County v. Water Rights Committee, 189 Ga. App. 873 (377 SE2d 730) (1989).

Decided March 15, 1990

Rehearing denied March 28, 1990

Fortson & White, John A. Howard, Charles D. McDonald III, Warren C. Fortson, for appellants.

Porter & Doster, J. Alexander Porter, Richard I. Metzger, Mahlon F. Rhaney, Jr., for appellee.

Judgment affirmed.

Banke, P. J., concurs. Sognier, J., concurs in Division 1 and in the judgment.

       The parties entered into the contract for construction of the school on February 8, 1983. Consequently, we must apply OCGA § 9-9-80 et seq. as it existed prior to amendment effective July 1, 1988. 1988 Ga. L., p. 903, § 1.


source: Caselaw Access Project

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

license: Public Domain

text:
    A89A2315.
    CRUDUP et al. v. POST PROPERTIES, INC. et al.
    (393 SE2d 9)
   Carley, Chief Judge.

Seeking to recover for the death of their son, appellant-plaintiffs filed this wrongful death action against numerous defendants, including appellee-defendants Post Properties, Inc. and Post Corners Limited. After answering, appellees moved for summary judgment. For purposes of appellees’ motion for summary judgment, the following facts were stipulated:

“On May 31, 1986, John N. Crudup, Jr. (age 25) and defendant ROBERT THOMAS RHODES (age 22) resided in separate apartments owned by defendant POST CORNERS, LTD., and managed by defendant POST PROPERTIES, INC. in an apartment complex known as Post Corners. Defendant POST PROPERTIES, INC. scheduled for May 31, 1986, a party at the pool at Post Corners. The party was scheduled to begin at 5:00 p.m. and end at 8:00 p.m. Defendant POST PROPERTIES, INC. provided food, drinks and alcoholic beverages to individuals who attended the party. Employees of defendant POST PROPERTIES, INC. were present at the party. Defendant RHODES, John W. Crudup, Jr., Vivian Taylor and Julie Pierce attended the party. While at the party, defendant RHODES and Crudup consumed alcoholic beverages and became noticeably intoxicated. Crudup knew that defendant RHODES was noticeably intoxicated. Anyone who saw defendant RHODES and Crudup would have been able to see that they were noticeably intoxicated. There exist genuine issues of material fact as to whether employees of defendant POST PROPERTIES, INC. knew or should have known that Crudup and defendant RHODES were noticeably intoxicated; continued to consume the alcoholic beverages after becoming noticeably intoxicated; and were going to leave the party in an automobile. Sometime after 8:00 p.m., defendant RHODES, Crudup, Pierce and Taylor left the party to go to defendant RHODES’ apartment. As the group left, defendant RHODES entered his vehicle and sat in the driver’s seat with Pierce in the front passenger seat. Defendant RHODES invited Crudup and Taylor to jump upon the hood of the vehicle and to ride back to defendant RHODES’ apartment. Crudup and Taylor proceeded to do so. Crudup and Taylor could have sat in the rear passenger seat of the vehicle. The vehicle proceeded for approximately 600 ft. and turned to the left. As the vehicle turned to the left, Crudup was either thrown off or fell off the hood and subsequently died of head injuries received during the fall. Defendant RHODES was negligent in his operation of the motor vehicle and RHODES’ negligence caused the death of Crudup. Chemical analysis of the blood of defendant RHODES and Crudup indicated that at the time of the incident there was a .16% alcohol content in defendant RHODES’ blood and .14% alcohol content in the blood of Crudup.”

Based upon these stipulated facts, the trial court focused upon the relationship between appellees, as providers of alcohol, and appellants’ deceased son, as a consumer of that alcohol, and concluded that no recovery would be authorized for the reasons set forth in Sutter v. Hutchings, 254 Ga. 194, 198 (fn. 7) (327 SE2d 716), which states in part: “Although the provider owes a duty not to provide alcohol to a driver who is noticeably intoxicated, the driver also owes a duty to exercise ordinary care for his own safety. [Cit.] As between provider and consumer, the consumer has the last opportunity to avoid the effect of the alcohol, by not drinking or not driving, and thus as between the two, the negligence of the consumer is the greater. Hence, notwithstanding the fact that the provider as well as the consumer should foresee the possibility of injury to the consumer, the consumer cannot recover for his injuries from the provider. [Cit.]” Appellants appeal from the grant of summary judgment in favor of appellees.

Sutter v. Hutchings, supra, is factually distinguishable insofar as it concerns the right of an intoxicated driver to recover from the provider of the intoxicants. At the time of his death, appellant’s son was intoxicated but he was not driving a vehicle. However, it is also true that, at the time of his death, appellant’s intoxicated son was not a vehicular passenger in the usual and ordinary sense. He was killed when he was thrown from the hood of the car. Accordingly, cases which concern the right of a passenger to recover for injuries inflicted by an intoxicated driver are also factually distinguishable and have no bearing on the resolution of this appeal, because no injury to a “passenger” is at issue here. “Many decisions have been written in Georgia and elsewhere with reference to whether a person, not in a passenger’s seat, is in the exercise of ordinary care for his own safety when he is injured as the result of the operation of a motor vehicle. ... A careful reading of these cases . . . will disclose that each such case must stand or fall on the particular circumstances shown by the pleadings or evidence.” DeWinne v. Waldrep, 101 Ga. App. 570, 571-572 (114 SE2d 455) (1960). Thus, the decisive issue is whether, under the “particular circumstances” shown by the evidence in the instant case, appellants’ deceased son’s lack of status as a passenger is such as to authorize the grant of summary judgment in favor of appellees.

Taylor v. Morgan, 54 Ga. App. 426, 431 (188 SE 44) (1936) is the controlling authority under the “particular circumstances” of this case: “ ‘The law is well settled that where a person voluntarily assumes a position of imminent danger when there is at hand and accessible to him a place of comparative safety, and by reason of his having taken that dangerous position he is injured, he can have no recovery against another who is also negligent, because such person’s negligence in taking the position is one of the direct and proximate causes of the injury and contributes thereto.’ [Cits.]” Thus, even if appellees were negligent in serving intoxicants to the driver of the car, it is nevertheless undisputed that appellants’ adult son voluntarily chose to ride on the hood of a car that was operated by a highly intoxicated driver, rather than to occupy an available passenger seat inside of the car. Compare Stone v. Cook, 190 Ga. App. 11 (378 SE2d 142) (1989) (no blatant danger in riding on fender of tractor traveling at one mile per hour); Moran v. Moody, 108 Ga. App. 350 (133 SE2d 98) (1963) (occupying rear of pickup truck not bar to recovery); Day v. Phillips, 107 Ga. App. 824 (131 SE2d 778) (1963) (occupying rear of pickup truck not bar to recovery); Crane Auto Parts v. Patterson, 90 Ga. App. 257 (82 SE2d 666) (1954) (no available seat in interior of the truck); Lassiter v. Poss, 85 Ga. App. 785 (70 SE2d 411) (1952) (minor riding on fender). Obviously, if appellants’ son had chosen to ride as a passenger inside the car, he would not have been thrown from the hood to the ground when the intoxicated driver turned a corner in a negligent manner. “ ‘If there is anything present at the time and place of the injury which would cause an ordinarily prudent person to reasonably apprehend the probability ... of danger to himself of doing an act he is about to perform, then he must take such steps as an ordinarily prudent person would take to ascertain whether such danger exists, as well as to avoid the consequences of the same after its existence is ascertained.’ [Appellants’ adult son] in the present case by the exercise of ordinary care should reasonably have foreseen that to [ride on the hood of a car while it was being operated by a highly intoxicated driver] was to place himself in a position where the slightest bump or turn could ‘throw’ him [from the hood] and onto the ground.” DeWinne v. Waldrep, supra at 572-573.

Accordingly, applying the right-for-any-reason rule, the trial court’s grant of summary judgment in favor of appellees must be affirmed on the basis that the voluntary election of appellants’ adult son to assume a position of imminent danger serves to bar a recovery for his resulting death as a matter of law.

Judgment affirmed.

Been, P. J., Banke, P. J., Birdsong, Sognier and Cooper, JJ., concur. Beasley, J., concurs specially. McMurray, P. J., and Pope, J., dissent.

Beasley, Judge,

concurring specially.

I concur in the judgment, but it should be made clear that we are not ruling on the liability of the driver or implying that such a ruling would of necessity follow. The last paragraph of the opinion may give the impression otherwise.

As between him and the deceased, there is evidence which would support the theory of comparative negligence. As between the alcohol providers and the deceased, however, there is no evidence from which it reasonably could have been foreseen that a person would ride upon the hood of a car when leaving the party with an alcohol-imbibing guest. As to the alcohol providers, then, the hood-rider’s own negligence conclusively establishes their non-liability.

McMurray, Presiding Judge,

dissenting.

Plaintiffs’ claim is predicated on the Post defendants (Post Properties, Inc. and Post Corners, Limited) providing alcoholic beverages to defendant Rhodes and is not predicated on the Post defendants providing alcoholic beverages to Crudup. Plaintiffs do not allege that the alcohol consumed by Crudup contributed to the cause of his death and it is stipulated that the negligence of defendant Rhodes caused the death of Crudup. A person who furnishes alcohol to a noticeably intoxicated person, knowing that such person will soon be driving his or her vehicle, is liable for injuries caused to third persons by the negligence of such intoxicated driver. Sutter v. Hutchings, 254 Ga. 194, 195 (1) (327 SE2d 716); Tibbs v. Studebaker’s of Savannah, 184 Ga. App. 642 (362 SE2d 377). Examining this principle together with the stipulated facts viewed in the light most favorable to plaintiffs, I would hold that plaintiffs have established a prima facie case. In other words, a jury could conclude that the Post defendants provided alcoholic beverages to a noticeably intoxicated defendant Rhodes knowing that he would soon drive his motor vehicle and are thus liable for Crudup’s death caused by the negligence of defendant Rhodes.

This case is somewhat different than earlier cases involving the liability of providers of alcoholic beverages in that in this case the injured third party was not a stranger to the intoxicated driver, but instead a passenger who had knowledge of the driver’s intoxication. Nonetheless, knowledge on the part of a passenger that a driver is intoxicated is not, as a matter of law, knowledge that the driver is so much under the influence of intoxicants as not to be able to drive safely. Therefore, a passenger’s knowledge of the driver’s intoxication does not preclude his recovery from the driver. Petroleum Carrier Corp. v. Jones, 127 Ga. App. 676, 679 (2), 681 (194 SE2d 670); Trussell v. Lawrence, 120 Ga. App. 39, 43 (169 SE2d 611); Stukes v. Trowell, 119 Ga. App. 651, 652 (168 SE2d 616). It follows that a passenger’s knowledge of the driver’s intoxication does not preclude his recovery from the provider of alcoholic beverages.

Nonetheless, the majority has determined that Crudup lacks the status of a passenger since he was traveling upon the hood of the car and that this lack of status is such as to authorize the grant of summary judgment to the Post defendants under the “particular circumstances” of the case sub judice. I cannot agree with these conclusions and therefore, I respectfully dissent.

Whether or not a person traveling in or upon a vehicle occupies a passenger seat, the fundamental principles governing the traveler’s action against a negligent driver remain the same. In the case sub judice, the negligence of the driver is stipulated. The record also contains evidence supporting various defenses to plaintiffs’ claim.

Regardless of the majority’s determination that Crudup lacked status as a “passenger,” the issue upon which this case turns is whether a defense to plaintiffs’ claim is established without contradiction or as a matter of law. The law favors a jury determination of the issues in a negligence case including those related to defenses, and such issues are not ordinarily susceptible to summary adjudication unless no other conclusion is permissible. Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832, 836 (331 SE2d 899); Showalter v. Villa Prado Assoc., 182 Ga. App. 705 (356 SE2d 895).

It has repeatedly been held that mere knowledge of a dangerous situation does not necessarily constitute that full appreciation which would be a bar to recovery. City of Eatonton v. Few, 189 Ga. App. 687, 691 (5) (377 SE2d 504); Newman v. Collins, 186 Ga. App. 595, 597 (367 SE2d 866); Phillips v. Lindsey, 184 Ga. App. 728, 729 (362 SE2d 491). This principle was applied to reach a holding that a passenger’s knowledge of a driver’s intoxication does not preclude his recovery from the driver in Petroleum Carrier Corp. v. Jones, 127 Ga. App. 676, 679 (2), supra, and also applied to reach a holding that riding on a fender does not preclude recovery from the driver in Lassiter v. Poss, 85 Ga. App. 785, 787 (1), 788 (70 SE2d 411). In my view, there is no reason the juxtaposition of these two situations in the case sub judice should be viewed as a bar to recovery. Alternatively stated, there is no evidence which demands a conclusion that Crudup had a full appreciation of the danger to himself arising from Rhodes’ intoxication, arising from riding on the hood of Rhodes’ automobile, or arising from the juxtaposition of these factors. Thus, I would hold that genuine issues of material fact remain for a jury and reverse the superior court’s grant of summary judgment to the Post defendants.

Decided March 9, 1990

Rehearing denied March 28, 1990

John N. Crudup, for appellants.

Smith, Carter, Gambrell & Russell, Thomas E. McCarter, David A. Handley, for appellees.

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


author: Beasley, Judge. Carley, Chief Judge,

text:
    A89A2330.
    FULTON COUNTY v. DANGERFIELD et al.
    (393 SE2d 285)
   Beasley, Judge.

Fulton County appeals judgments for the owners, the Dangerfields, and the lessee, White d/b/a Syn Mar Company, on property taken in condemnation for the College Park MARTA station. Two enumerations involve evidence admitted over objection and the third involves a jury charge.

The Dangerfields urged that the real property had extra value as a site for an advertising sign. Evidence was introduced of applications to the Federal Aviation Administration for height approval and to the City of College Park for a building permit for the sign.

1. The county enumerates as error the court’s allowing the Dangerfields’ attorney for the permit application to give expert opinion as to the reason College Park denied the permit. To set the matter in context, it is observed that the condemnor does not contest the relevancy of the denial of the permit. See MARTA v. Martin, 193 Ga. App. 566 (2) (388 SE2d 346) (1989).

The witness’ opinion was based on statements made by city employees before the hearing and by the Mayor and MARTA representatives at the hearing on the application. The opinion was that, since all requirements had been met but MARTA had advised the city that the property was being condemned, the permit was denied for this reason. The testimony was objected to as improper because it dealt with the subjective basis for a political decision. Appellant cites only Jackson v. Delk, 257 Ga. 541, 543 (2) (361 SE2d 370) (1987), and Quigley v. Woodall, 253 Ga. 688, 689 (325 SE2d 772) (1985) (one justice’s special concurrence in an affirmance without opinion).

Jackson involved a rezoning by the board of county commissioners, and the testimony of individual commissioners as to their individual intentions in a legislative matter was not permitted. Zoning is a quasi-legislative function. Gradous v. Bd. of Commrs. of Richmond County, 256 Ga. 469, 470 (349 SE2d 707) (1986); Atlanta v. McLennan, 240 Ga. 407, 410 (3) (240 SE2d 881) (1977). Ascertainment of the basis for a board’s collective and public administrative decision on a building permit would be a different matter.

If the reason is expressly stated or documented by the board for its published decision, which would be admissible as direct evidence, there is no barrier to the admission of circumstantial evidence of that reason. Assuming that denial of a permit is relevant to value, as it materially affects the use to which the land may be put, it would appear that one who is experienced in the bases for grants and denials of permits could give his opinion as to the reason for a particular one. It was evident to him that the denial was occasioned by actions of the condemnor. His opinion could be challenged on cross-examination and otherwise.

Fulton County had stipulated to the qualifications of the witness who was offered as an expert in building permit law and practice in the locality, by virtue of his being an attorney and having experienced an extensive administrative practice before the College Park city council and its zoning boards and having represented the Dangerfields in this instance. Delk, relied upon by the county, holds only that the testimony of a legislator as to the reasons underlying a legislative enactment is not admissible to prove legislative intent.

The action at issue, the grant or denial of a sign permit, was an administrative ministerial act and not legislative. Statements of representatives of MARTA, the entity for whose benefit the property was being condemned, and statements of city employees involved in the permitting process formed part of the basis for the witness’ opinion of the reason for the denial, and it was admissible. OCGA § 24-9-67; King v. Browning, 246 Ga. 46, 47 (1) (268 SE2d 653) (1980).

2. Error is enumerated in appellee White’s testimony that the market value of his business at the time of taking was $130,000. MARTA objected on the sole ground that this element may only be considered if it can be shown that the property is unique to the owner and that White’s testimony had not shown the requisite uniqueness.

White then testified as to the uniqueness of the location to his business and that the market value of his business after the move was $75,000, giving factual bases for his conclusion. MARTA moved to strike this testimony on the ground that temporary business losses are not recoverable where the damage is caused by temporary inconvenience or the loss is not permanent.

The enumeration is that it was error to allow the testimony in the absence of evidence of permanent loss or profits. There was no motion for directed verdict made by the county on the issue of business losses. What is to be considered, then, is whether there was sufficient evidence from which the jury could evaluate the claimed business loss.

“ ‘(W)hen the business belongs to a separate lessee, the lessee may recover for business losses as an element of compensation separate from the value of the land . . . , provided only that the loss is not remote or speculative. (Cit.)’ [Cit.] ‘ “(I)f the business has suffered damage because of the taking of the real property upon which it is carried on, the correct measure of damages would be the difference in market value prior to and after the taking. While various elements, such as loss of profits, loss of customers or possibly what might be termed a decrease in the earning capacity of the business may all be considered in determining the decrease in value of the business, they represent no separate element of damage.” (Cit.)’ (Emphasis supplied.) [Cit.]” MARTA v. Martin, supra at 567. Evidence of any business losses which result in a diminution of value of a condemnee’s business is admissible. Buck’s Svc. Station v. Dept. of Transp., 259 Ga. 825 (387 SE2d 877) (1990).

Unlike the Martin case, there was sufficient evidence to submit the issue to the jury. White testified as to his business’ diminished value, based on loss of customers and other factors. Whether there was adequate supporting data for White’s conclusion was a jury question. OCGA § 24-9-80; DeKalb County v. Glaze, 189 Ga. App. 1, 4 (2 b) (375 SE2d 66) (1988).

3. Two of White’s requested charges allegedly resulted in confusion for the jury in valuing loss of leasehold. The record does not contain Request #21, but its substance is in the court’s charge, according to discussions of it.

White testified about the difference in the rate of his lease with the Dangerfields and that which he was able to obtain after moving. This evidence was relevant to prove the value of White’s leasehold interest. Dept. of Transp. v. Lewyn, 168 Ga. App. 283, 286 (3) (308 SE2d 684) (1983).

Reviewing the charge “as a whole and each part in connection with every other part of the charge,” Robert & Co. Assoc. v. Tigner, 180 Ga. App. 836, 841 (1) (351 SE2d 82) (1986), it is not subject to the infirmity urged.

Decided March 16, 1990

Rehearing denied March 28, 1990

Robert G. Young, for appellant.

Peek & Whaley, J. Corbett Peek, Jr., James G. Peek, Abraham A. Sharony, for appellees.

Judgment affirmed.

McMurray, P. J., Birdsong, Sognier and Pope, JJ., concur. Carley, C. J., Deen, P. J., and Banke, P. J., dissent. Cooper, J., disqualified.

Carley, Chief Judge,

dissenting.

I must respectfully dissent to Division 1 of the majority opinion and to the affirmance of the judgment in this case. In my opinion, the trial court erred in admitting the opinion testimony of the condemnees’ witness and that erroneous evidentiary ruling requires the reversal of the judgment.

In Jackson v. Delk, 257 Ga. 541, 543 (2) (361 SE2d 370) (1987), the Supreme Court held that “the trial court erred in requiring the county commissioners to submit to deposition questioning concerning their individual intentions with respect to the board’s rezoning decision.” I do not construe the Supreme Court’s holding as narrowly as the majority does and, in my opinion, those individuals who had actually denied the condemnees’ application for a permit would not themselves be allowed to testify as to their “individual intentions” in so doing. It therefore seems clear to me that the condemnees’ witness should not have been allowed to give his opinion as to the “collective” intentions which underlay the decision of those individuals to deny the permit. See Southern R. Co. v. A. O. Smith Corp., 134 Ga. App. 219, 221 (2) (213 SE2d 903) (1975).

The condemnees’ witness may have been qualified as an expert. However, he was certainly not qualified to give an inadmissible opinion. I believe that he was erroneously allowed to do just that over the condemnor’s objection, and that the majority has sanctioned that error by failing so to hold. Accordingly, I respectfully dissent.

I am authorized to state that Presiding Judge Deen and Presiding Judge Banke join in this dissent.


author: Cooper, Judge.

text:
    A89A2343.
    LITTLE v. COX ENTERPRISES, INC.
    (393 SE2d 57)
   Cooper, Judge.

Appellant appeals from the judgment of the superior court reversing the award of the State Board of Workers’ Compensation.

Appellant, who injured his back on November 9, 1986 during the course of his employment as a deliveryman for the appellee newspaper, was hospitalized and given certain prescription medications. He received temporary total disability benefits until he returned to work on November 25, 1986. He reinjured his back on February 19, 1987 while lifting heavy bales of paper. On that same evening, he noticed a small amount of blood in his mouth which, when examined by his wife, did not appear to be coming from his teeth or gums. On March 28, 1987 appellant began to cough up blood and, on March 31, 1987 he was readmitted to South Fulton Hospital for a lumbar laminectomy. At that time appellant began hemorrhaging profusely and required massive blood transfusions. His back surgery had to be postponed until the bleeding was controlled. Subsequent to his recovery from the back surgery appellant was required to be hospitalized four times for treatment of upper gastrointestinal bleeding and esophageal varices “suggestive of” cirrhosis of the liver.

Appellee refused to pay benefits for any treatment related to the hemorrhaging, contending that it was caused by cirrhosis of the liver brought about by appellant’s heavy drinking and was not work related. The matter was heard by the ALJ, who issued an award in appellant’s favor finding that: “there was a causal relationship between the subsequent bleeding of the esophageal varices as a result of the claimant’s being given anti-inflammatory and anti-steroidal drugs at South Fulton Hospital when undergoing treatment for his back injury, including surgery. The resulting gastritis and the inflammation was the basic underlying cause for the bleeding. In addition, the stress of heavy lifting immediately prior to the back injury and surgery could have predisposed the varices to bleed by increasing the internal pressure within those organs.” The full board affirmed the award of the ALJ; but on appeal to the superior court, the award was reversed.

The ALJ and the full board are factfinders and have the exclusive prerogative of weighing evidence, and determining the credibility of witnesses. Horizon Indus. v. Carter, 188 Ga. App. 194, 196 (372 SE2d 301) (1988). Furthermore, “ ‘[i]t is axiomatic that any finding of fact by the board, if supported by any evidence, is conclusive and binding upon the superior court and this court. (Cits.)’ ” Henry Gen. Hosp. v. Stephens, 189 Ga. App. 619 (1) (376 SE2d 705) (1988).

Our review of the record discloses that the evidence was conflicting as to the cause of appellant’s bleeding. One of his treating doctors stated that in his opinion the repetitive loading and unloading of the newspaper bales from the truck could have caused a progressive weakening of the venus walls of the esophageal varices which would increase their chances of rupturing; and that the medications given to appellant could facilitate a bleeding tendency if taken within two weeks prior to the bleeding. Indeed, all of the doctors involved in treating appellant concurred with the fact that the medications he was taking could have aggravated any preexisting cirrhosis of the liver, and another doctor agreed that the bleeding also could have resulted from prolonged lifting in addition to the medicine. One of the attending physicians even ventured the opinion that the bleeding from the varices veins could have been induced by the procedure he used in examining appellant’s throat. The only evidence to suggest that appellant had suffered alcohol related problems with his liver prior to his back injury was three arrests for DUI and the testimony of his boss that he and appellant had drunk too much together on occasion and discussed their drinking “problem.” However, there was no evidence of any treatment of appellant for alcohol related behavior or disease by any physician or facility, nor was there any evidence that appellant had a past history of any unusual bleeding or hemorrhaging. In short, the evidence presented in regard to whether there was a proximate causal connection between appellant’s work activities and the aggravation of his preexisting condition was in dispute and contradictory. There being some evidence to support the findings of the ALJ and the full board in this case, the court erred in reversing the award.

Decided March 15, 1990

Rehearing denied March 28, 1990

Charles E. Muskett, for appellant.

Savell & Williams, Judy F. Aust, for appellee.

Judgment reversed.

Deen, P. J., and Birdsong, J., concur.


author: McMurray, Presiding Judge. Deen, Presiding Judge,

text:
    A89A1660.
    HYZER et al. v. HICKMAN. SHEAN v. HICKMAN.
    A89A1661.
    (393 SE2d 79)
   McMurray, Presiding Judge.

In the fall of 1985 Mike Shean and Earl Hickman, an attorney, met and decided to enter the home construction business. Hickman was to secure the financing of the project while Shean would provide technical knowledge and supervise the actual construction.

A corporation was formed to conduct the business. The 500 shares issued by the corporation were divided between Hickman (166 shares) and two investors, Hickman’s brother and a friend (167 shares each). The three shareholders composed the board of directors, while Hickman also served as president and treasurer. Although Shean was not a shareholder, the corporation bore his name as Mike Shean Signature Homes, Inc.

The initial funding for the corporation of $223,000 came from five sources. Each of the shareholders provided $10,000 to the corporation. Most of this $30,000 was identified as a loan and no more than $500, the statutory minimum, was ever designated as capital of the corporation. Hickman’s client, Intercontinental Enterprises, Inc., loaned the corporation $190,000. The remaining $3,000 was loaned by Hickman’s professional corporation. With these funds six building lots were purchased by the corporation. In order to protect the original loans the corporation executed a promissory note and a deed, to secure debt to the assets of the corporation to Hickman personally.

Six construction loans totaling $600,000 or more were obtained from Home Federal Savings & Loan Association (“Home Federal”). In order to obtain the construction loans, Hickman subordinated the security interest he held to the construction loan notes.

The corporation was allowed to make draws on the construction loans as progress was made in the fabrication of the houses. Upon completion of the first house more than 80 percent of the available construction loans ($480,000) had been drawn. Nonetheless, in order to pay bills in connection with the completion of the first house, Hickman loaned the corporation an additional $20,000 a few days before the closing on the first house was completed.

The first and only house completed by the corporation was sold to Peter and Bette Hyzer. At the closing on the sale to the Hyzers, Hickman received a check for $63,358.33. More than $20,000 was retained by Hickman as payment of principal and interest on the loan he had made to the corporation shortly before the closing. The remainder was placed in the corporation’s account to pay for construction expenses and also for expenses from a workers’ compensation claim that arose from an incident which predated the corporation’s purchase of workers’ compensation insurance.

Following the Hyzer sale, Shean resigned and construction ended on the remaining houses. To forestall a foreclosure by Home Federal, Hickman determined that the corporation was in default under its note to him and foreclosed on the remaining residences. Hickman then sold the remaining five homes to another construction company for cash, a promissory note, and assumption of the construction loans. The proceeds of this sale were and are to be distributed to the four original lenders.

After moving into their new house the Hyzers discovered various defects in the construction of the residence. The Hyzers’ attempts to have the problems remedied under the corporation’s warranty of the house were unsuccessful.

This action was commenced in April 1987 when Walk Softly, Inc., filed an action asserting a labor and materialman’s lien arising from the construction of the Hyzers’ home. The Hyzers filed cross-claims against the corporation for indemnity on Walk Softly’s claim and direct claims against the corporation for breach of contract predicated on the defects in the new home. The Hyzers also filed third party complaints against Hickman and Shean seeking indemnity on the Walk Softly claim. These portions of the action have been resolved by the default of the corporation and by this Court’s decision affirming summary judgment in favor of the Hyzers on the Walk Softly claim. See Walk Softly, Inc. v. Hyzer, 188 Ga. App. 230 (372 SE2d 500).

The issues on appeal arise from the Hyzers’ and Shean’s claims against Hickman individually, predicated upon a theory of piercing the corporate veil. The Hyzers’ third party complaint seeks damages against Shean for breach of contract and against Hickman for the defects in their home, the failure of the corporation to make contracted improvements and additions to the home, and the corporation’s failure to honor the homeowner’s warranty. Shean, as third party defendant, cross-claims against Hickman seeking indemnity for any judgment against him in the Hyzers’ third party action and for the amount of his breach of contract claim against the corporation. Case No. A89A1660 is the Hyzers’ appeal and Case No. A89A1661 is Shean’s appeal from the grant of summary judgment in favor of Hickman on the issues raised in the third party action. Held:

1. “If a corporation is organized and carries on a business without substantial capital in such a way that the corporation is likely to have insufficient assets available to meet its debts, it is inequitable that the stockholders should set up such a flimsy organization to escape personal liability. ‘Inadequate capitalization’ means capitalization very small in relation to the nature of the business of the corporation and the risks the business necessarily entails. The attempt to do corporate business without providing any sufficient basis of financial responsibilities to creditors is an abuse of the separate entity and will be ineffectual to exempt stockholders from corporate debts. It is coming to be recognized as the policy of the law that the stockholders should in good faith put at the risk of the business unencumbered capital reasonably adequate for its prospective liabilities. If the capital is illusory or trifling compared to the business to be done and the risks of loss, this is ground for denying the separate entity privilege. . . .
“The adequacy of capital is to be measured as of the time of formation of the corporation. A corporation that was adequately capitalized when formed but which subsequently suffers financial reverses is not undercapitalized.” Fletcher Cyc Corp & Cumulative Supplement § 44.1. See also 46 ALR3d 428 and Tigrett v. Pointer, 580 SW2d 375.

In the cases sub judice, we have a corporation, with no more than $500 in capital, setting out to construct six houses which when completed could be anticipated to sell for a total sum in excess of one million dollars. Even though only one of the houses was completed, the corporation had as much as approximately $700,000 of borrowed money invested in the project. A jury could easily determine that the $500 capital of the corporation was entirely insignificant in relation to the risks accompanying a construction project of this scale. Satisfaction of former OCGA § 14-2-171 (a) (8), requiring minimum capital of $500, does not preclude a determination that a corporation is under-capitalized.

Parties entering into contractual relations with corporations are entitled to assume that the corporation is more than a shell. “[Inadequate capitalization is not of itself a badge of fraud, unless capitalization is very small in relation to the nature of the corporation’s business and to the risks that the business entails.” 18 AmJur2d, Corporations, § 49. See 18 AmJur2d, Corporations, § 50. The courts are constantly demonstrating a willingness to disregard the separateness of the entity of a corporation where such corporation has overextended its privileges in the use of the corporate entity to defeat justice, to perpetuate fraud, or to evade statutory, contractual or tort responsibility. Amason v. Whitehead, 186 Ga. App. 320, 321-322 (367 SE2d 107); Saxton v. Luke, 164 Ga. App. 170, 171 (296 SE2d 751). See also Sheppard v. Tribble Heating & Air Conditioning, 163 Ga. App. 732 (294 SE2d 572).

We need not decide whether grossly inadequate capitalization by itself is an adequate basis for piercing the corporate veil. In the cases sub judice, there is also evidence of preferential distributions by the corporation, after it became insolvent, to Hickman. We are referring both to the repayment to Hickman of the unsecured loan made shortly before the closing on the Hyzer house and also to Hickman’s rights under the note received in the transaction disposing of the remaining five houses. See Fountain v. Burke, 160 Ga. App. 262 (287 SE2d 39) and Ware v. Rankin, 97 Ga. App. 837 (104 SE2d 555).

Hickman would distinguish Fountain on the basis that the present case deals with secured debt, however, this contention is not relevant to the unsecured loan and there is evidence that the corporation was insolvent at the time the security interests were created. Nor are Fountain and Ware erroneous for the reasons stated in Scroggins v. Ridge Nassau Corp., 135 Ga. App. 547, 548 (1) (218 SE2d 448). It is the Scroggins decision which should be distinguished or viewed as erroneous since it overlooks previous authority, such as Ware which is cited in Fountain, wherein legal remedies are asserted against the officers of insolvent corporations to recover preferentially disbursed funds. Insofar as any confusion of legal theories exists in Fountain it does not affect the result which is clearly predicated upon the principie that the “president of the defendant corporation could not, after the corporation became insolvent, seize all its remaining assets and apply them to a debt owed by the corporation to himself personally, thereby rendering it incapable of paying its other business debts.” Fountain at 264 (2). Also, while Fountain is technically only mere physical precedent, Ware is binding authority and equally supportive of the proposition that a preferential distribution by an insolvent corporation to an officer or shareholder gives rise to legal remedies.

Additionally, we must note that this is not an action to recover merely the funds preferentially disbursed to Hickman, but an action which seeks to pierce the corporate veil so as to render Hickman liable for the debts of the corporation. The relevance of the evidence concerning the misappropriation is not to establish the existence of a trust fund which may be recovered, but to contribute to a showing, of that abuse of the privilege of doing business in corporate form, which compels a piercing of the corporate veil and disregard of the corporate form.

Genuine issues of material fact remain as to whether the circumstances authorize the piercing of the corporate veil and disregard of the corporate entity so as to hold Hickman personally liable for the debts of the corporation. This decision must be made separately for Shean and for the Hyzers, as their relationships with the corporation are somewhat different and this determination must be made on the facts of each case. In reaching our conclusion that the summary judgment in favor of Hickman was error we have not reached all of the theories argued and do not intend to express any opinion as to the merit of those not mentioned in this opinion.

2. Shean also enumerates as error the state court’s refusal to award attorney fees under OCGA § 9-11-56 (g). However, this issue does not appear to have been raised before the trial court, but for the first time on appeal. No reference to the record showing that this issue was raised before, or ruled upon by, the state court is made as required by Rule 15 (a) (1) of the Rules of the Court of Appeals of the State of Georgia, nor have we found any. Under these circumstances nothing is presented for review on appeal. See Ewald v. Security Pacific Credit Corp., 190 Ga. App. 615, 616 (1) (379 SE2d 569); State of Ga. v. Stuckey Health Care, 189 Ga. App. 126, 129 (4) (375 SE2d 235).

Judgments reversed.

Banke, P. J., Birdsong, Pope and Cooper, JJ., concur. Carley, C. J., and Beasley, J., concur in the judgment only. Deen, P. J., and Sognier, J., dissent.

Deen, Presiding Judge,

dissenting.

The majority’s reliance in Division 1 on Fountain v. Burke, 160 Ga. App. 262 (287 SE2d 39) (1981), is misplaced, as that case is a physical precedent only, and because it concerns the theory of misappropriation by a shareholder of the assets of an insolvent corporation. Compare Abbott Foods of Ga. v. Elberton Poultry Co., 173 Ga. App. 672, 673 (2) (327 SE2d 751) (1985). “There is some authority that equity may decree a corporate officer or stockholder personally liable for a corporate debt where it is shown that he had misappropriated corporate assets. [Cits.] However, equitable relief was neither sought in the [Hyzers’ third-party] complaint [or Shean’s cross-claim] nor could it have been granted by the trial court, the State Court of [Fulton] County, for it has no equity jurisdiction. [Cit.]” Scroggins v. Ridge Nassau Corp., 135 Ga. App. 547, 548 (1) (218 SE2d 448) (1975). Accordingly, the misappropriation theory has no viable applicability in this case.

Decided March 16, 1990

Rehearing denied March 29, 1990

Johnson & Montgomery, Harmon W. Caldwell, Jr., Wade H. Watson III, for appellants (case no. A89A1660).

Smith, Currie & Hancock, D. Lee Roberts, Jr., for appellant (case no. A89A1661).

Heyman & Sizemore, William H. Major, William B. Brown, for appellee.

Since the misappropriation theory is inapplicable, the issue to be resolved is whether the evidence adduced as to the corporation’s capitalization would authorize a piercing of the corporate veil. There is considerable doubt whether there is evidence of grossly inadequate capitalization in this case. However, even assuming that a genuine issue of fact did remain as to the corporation’s grossly inadequate capitalization, that issue would not be material. The existence of that factor, standing alone, will not provide a basis for piercing the corporate veil. Fountain is correct insofar as it notes that undercapitalization is in itself a perfectly legal business device. Fountain v. Burke, supra at 263 (2). It is, therefore, my opinion that “[t]here is no evidentiary basis in this action by law by which [Hickman] as an individual can be held liable to [the Hyzers or Shean] for [debts] which [were] incurred by the corporation].” Scroggins v. Ridge Nassau Corp., supra at 548 (1). Accordingly, I would affirm the trial court’s grant of summary judgment, and I must respectfully dissent to the majority’s reversal of that order.

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


author:
Sognier, Judge. Banke, Presiding Judge,
      Deen, Presiding Judge,

text:
    A89A1717.
    ROMAN v. TERRELL et al.
    (393 SE2d 83)
   Sognier, Judge.

Betty Roman filed suit against Teresa Terrell, an uninsured motorist, seeking to recover for injuries sustained in an automobile collision allegedly caused by reckless and negligent driving on Terrell’s part. Both Terrell and Roman’s uninsured motorist carrier, Motors Insurance Corporation (“MIC”), were served; and both filed responsive pleadings. A jury returned a verdict in favor of Roman for actual damages in the amount of $15,600 and punitive damages in the amount of $24,000. The trial court entered judgment against both Terrell and MIC for the actual damages but declined to enter judgment against MIC for the punitive damages. Roman appeals.

1. Appellant contends that MIC waived the right to contest its liability for the punitive damages by failing either to deny such liability in its answer or to raise the issue during the pretrial proceedings in the case. However, MIC’s answer contains an express denial of liability for punitive damages, and it appears that the pretrial order was never signed by the judge. “Until an order is signed by the judge it is ineffective for any purpose.” Majors v. Lewis, 135 Ga. App. 420, 421 (218 SE2d 130) (1975). Thus, we find no basis in the record for a conclusion that MIC waived consideration of its contention that it could not be held liable for punitive damages.

2. Appellant also contends the trial court erred by refusing to enter judgment on the jury’s verdict for punitive damages against MIC where, as here, the tortfeasor is known and has been served. In State Farm Mut. Ins. Co. v. Kuharik, 179 Ga. App. 568 (347 SE2d 281) (1986), and Coker v. State Farm Mut. Ins. Co., 193 Ga. App. 423 (388 SE2d 34) (1989), this court held that an award of punitive damages against an uninsured motorist carrier was improper. In Kuharik, the tortfeasor was unknown, and we reasoned that such an award would be totally ineffective to deter future misconduct on the part of the tortfeasor. In Coker we employed this same rationale to hold that an uninsured motorist carrier could not be held liable for punitive damages based on the conduct of a tortfeasor whose identity was known but whose whereabouts were unknown and over whom the trial court had consequently never acquired jurisdiction. However, on that same date we held, in State Farm Mut. &c. Ins. Co. v. Weathers, 193 Ga. App. 557 (388 SE2d 393) (1989) that an uninsured motorist carrier may be held liable for punitive damages based on the conduct of a known tortfeasor over whom the trial court has acquired personal jurisdiction, reasoning that in contrast to the situation in Kuharik and Coker, supra, payment of punitive damages by the uninsured motorist coverage carrier in such a situation could have at least a potential deterrent effect against the tortfeasor, since the insurer presumably can pursue a subrogation claim against him to obtain reimbursement of the award. See OCGA § 33-7-11 (f).

We find that Weathers was incorrectly decided. In Weathers, OCGA § 33-7-11 (a) (1) was quoted as requiring that uninsured motorist insurance provisions undertake “ ‘to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle.’ ” Weathers reasoned that since the language was plain, and remedial statutes must be construed liberally, the quoted language “militate [s] against a finding that an exception for punitive damages should be carved out of the statutory language, ‘all sums.’ ” Id. at 558.

But the language of OCGA § 33-7-11 (a) (1) is not nearly so thin as that quoted in Weathers. In actuality the statute provides that “[n]o automobile liability policy or motor vehicle liability policy shall be issued . . . unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle . . . because of bodily injury to or death . . . and . . . because of injury to or destruction of property of the insured. . . .” (Emphasis supplied.) Although Weathers found “no reason in either law or logic for ignoring the statute’s plain language . . . and making an exception for punitive damages,” we find that this language is not “plain” but requires construction to ascertain its meaning, and, contrary to the pronouncement in Weathers, supra at 558, it does not “defy logic” to interpret it as requiring an uninsured motorist insurer to cover only compensatory damages.

Typically, uninsured motorist insurance statutes fall into two categories: those which require that the insurer must provide coverage for “all sums” the insured could recover as damages from the tortfeasor, and those which require that the carrier must provide coverage for “all sums” the insured could recover from the tortfeasor “for” or “because of’ or “on account of” bodily injury or property damage. Courts interpreting statutes in the former category have usually found the statutory language “plain” and permitted the recovery of punitive damages, while many courts interpreting statutes in the latter category have construed the statutes to provide for compensatory damages only, and have held that punitive damages are not recoverable from uninsured motorist carriers. See generally Annot., Punitive Damages As Within Coverage of Uninsured Or Underinsured Motorist Insurance, 54 ALR4th 1186. Although the Georgia statutory language falls into the latter category, Weathers quoted only that part of the statute which is similar to the language of the former category, and went on to conclude that because the quoted language was broad and plain, and did not limit recovery at all, it should include punitive damages.

However, our statute requires an uninsured motorist carrier to compensate its insured for all sums the insured could recover from the tortfeasor because of bodily injury or property damage. Contrary to the conclusion in Weathers, this language does not necessarily include punitive damages within the statute’s purview. Punitive damages are not awarded “because of’ the bodily injury or property damage sustained by the victim, but rather “because of” some aspect of the tortfeasor’s conduct which caused the victim’s loss: wilfulness, perhaps, or some other aggravating circumstance which prompts the desire to punish the wrongdoer and prevent similar conduct in the future. Thus, because an award of punitive damages stems from the tortfeasor’s conduct rather than from the victim’s bodily injury or property damage, it cannot be said that the language of OCGA § 33-7-11 (a) (1) is plain and clearly includes punitive damages. Accordingly, that conclusion in Weathers, supra, is incorrect.

3. (a) As we have determined that the meaning of OCGA § 33-7-11 (a) (1) is not plain, we begin our analysis of the question of whether punitive damages are recoverable from an uninsured motorist carrier where the tortfeasor is known and served by applying the principles of statutory construction to the statutory language. It is elementary that “[i]n all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly.” OCGA § 1-3-1. In attempting to discern the intention of the legislature, a “construction which will uphold a statute in whole and in every part is to be preferred.” Exum v. City of Valdosta, 246 Ga. 169, 170 (1) (269 SE2d 441) (1980). We must assume the legislature included the phrases “because of bodily injury ...” and “because of injury to or destruction of property of the insured” for a reason, rather than including phrases which are meaningless because the phrase “all sums the insured shall be legally entitled to recover” is sufficient to convey the intended meaning. Moreover, the fact that punitive damages are omitted while damages “because of” bodily injury and property damage are mentioned invites the application of the venerable principle of statutory construction expressio unius est exclusio alterius: the express mention of one thing implies the exclusion of another; or the similar maxim more usually applied to statutes, expressum facit cessare taciturn, which means that if some things (of many) are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned. See Bailey v. Lumpkin, 1 Ga. 392, 403-404 (1846). Thus, the purely technical application of the rules of statutory construction favors the conclusion that, contrary to the declaration in Weathers, supra, the legislature’s intention was to permit recovery only of compensatory, and not punitive damages.

(b) Moreover, although the statutory language possibly might permit a construction allowing recovery of punitive damages, we find more persuasive the policy arguments in favor of excluding them.

As to the distinction found in Weathers because the tortfeasor is known and has been served, any potential deterrent effect against the tortfeasor created by the insurer’s right to pursue a subrogation claim against him to obtain reimbursement of the award, is ephemeral at best. The reality is that most uninsured motorists are judgment proof, or at least difficult judgment debtors against whom to satisfy judgments. The uninsured motorist insurance statute was designed to compensate their victims for this reason. Thus, the prospect of the insurer satisfying its subrogation claim is dim. Further, in the unlikely event that there are assets to be levied on, the victim will have a judgment for punitive damages against the tortfeasor and can reach them. This court has twice held that punitive damages are not recoverable in an uninsured motorist context. Kuharik; Coker, supra. We see no crucial distinction between known or unknown, served or unserved uninsured motorists in this regard, and extend the holdings in Kuharik and Coker to the situation presented here.

We are persuaded by the logic of the court in Braley v. Berkshire Mut. Ins. Co., 440 A2d 359 (Me. 1982), that “[allowing punitive damages to be awarded against an insurance company can serve no deterrent function because the wrongdoer is not the person paying the damages. . . . ‘[TJhere is no point in punishing the insurance company; it has done no wrong. In actual fact, of course, . . . the burden would ultimately come to rest not on the insurance companies but on the public, since the added liability to the insurance companies would be passed along to the premium payers. Society would then be punishing itself for the wrong committed by the [tortfeasor].’ [Cit.]” Id. at 362. See also Burns v. Milwaukee Mut. Ins. Co., 360 NW2d 61, 64-65 (Wis. App. 1984). This cannot be the intended purpose of our statute.

Although it is true, as pointed out in Weathers, that in Georgia recovery of punitive damages has been held not to violate public policy per se in the context of liability coverage, see Greenwood Cemetery v. Travelers Indem. Co., 238 Ga. 313 (232 SE2d 910) (1977), at least some relationship to deterrence is possible in the liability insurance area, because it is the tortfeasor insured’s premiums which would be raised to cover the carrier’s payout. In the context of uninsured motorist coverage, the victim claimant is the insured, and no deterrent effect is possible through direct premium increases.

Therefore, because we find the proper construction of the statute, as well as the proper public policy of this state, is that no recovery of punitive damages may be had against an uninsured motorist carrier, Weathers, supra, is overruled, and we affirm the trial court’s judgment in this case.

Judgment affirmed.

McMurray, P. J., Birdsong, Beasley and Cooper, JJ., concur. Carley, C. J., Banke, P. J., and Pope, J., concur specially. Deen, P. J., dissents.

Banke, Presiding Judge,

concurring specially.

I agree that motor vehicle insurers are not required by OCGA § 33-7-11 (a) (1) to provide uninsured motorist coverage for punitive damage claims. However, I do not agree with the majority’s conclusion, expressed in Division 3 (a) of its opinion, that “the purely technical application of the rules of statutory construction” necessarily favors this interpretation. The words “because of bodily injury” and “because of injury to or destruction of property of the insured” appear in subdivisions (A) and (B), respectively, of § 33-7-11 (a) (1), dealing with the limits of the required coverage. Thus, in the context in which they are used, they may be construed as a limitation merely on the amount of coverage required to be made available, which differs between these two categories. So construed, these phrases would provide a meaningful qualification of the requirement that coverage be provided for “all sums the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle,” without necessarily excluding coverage for punitive damages.

Nevertheless, I do not believe the Legislature intended to require automobile insurers (and ultimately, as the majority points out, premium payers generally) to cover claims for punitive damages arising from wrongs committed by uninsured motorists. “It has been held that the Legislature’s purpose in enacting the Georgia uninsured motorist statute was ‘to protect the insured as to his actual loss.’ State Farm &c. Ins. Co. v. Murphy, 226 Ga. 710, 714 (177 SE2d 257) (1970).” Dacosta v. Allstate Ins. Co., 188 Ga. App. 10, 11 (372 SE2d 7) (1988). Viewed in the light of that purpose, the terminology, “all sums the insured shall be legally entitled to recover as damages,” may reasonably be interpreted as encompassing only actual damages. Indeed, our holdings in State Farm Mut. Ins. Co. v. Kuharik, 179 Ga. App. 568 (347 SE2d 281) (1986), and Coker v. State Farm Mut. Ins. Co., 193 Ga. App. 423 (388 SE2d 34) (1989), are implicitly based upon such a construction, for if the “all sums” terminology unambiguously encompassed punitive damages, there would be no basis for refusing to hold the insurer liable for such damages in cases where the identity or whereabouts of the uninsured tortfeasor is unknown. I therefore concur in the overruling of State Farm Mut. Ins. Co. v. Weathers, 193 Ga. App. 557 (388 SE2d 393) (1989), and in the affirmance of the trial court’s judgment in the present action.

I am authorized to state that Chief Judge Carley and Judge Pope join in this special concurrence.

Deen, Presiding Judge,

dissenting.

I would not necessarily disagree with the majority’s contention that, as a matter of public policy, it might be preferable that punitive damages not be recoverable in an action for uninsured motorist benefits. It is the legislature, however, and not the courts, to which belongs the prerogative of incorporating public policy considerations into the laws which the courts are bound to uphold. It is what the law says, not what we might wish it to say, that is binding on the courts.

In the instant case the statutory language, when read according to the statutory directive, OCGA § 1-3-1 (b), plainly and unambiguously permits the recovery of “all sums” recoverable “as damages.” OCGA § 33-7-11 (a) (1). Thus to overrule State Farm Mut. &c. Ins. Co. v. Weathers, 193 Ga. App. 557 (388 SE2d 393) (1989), which relies on the plain and unambiguous language of § 33-7-11 (a) (1), as the majority proposes to do, would be contrary to the letter and spirit of applicable law.

“In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly.” OCGA § 1-3-1 (a). “It has been held that the Legislature’s purpose in enacting the Georgia uninsured motorist statute was ‘to protect the insured as to his actual loss.’ State Farm &c. Ins. Co. v. Murphy, 226 Ga. 710, 714 (177 SE2d 257) (1970).” Dacosta v. Allstate Ins. Co., 188 Ga. App. 10, 11 (372 SE2d 7) (1988). Punitive or exemplary damages are those awarded “over and above what will barely compensate him for his . . . loss, where the wrong . . . was aggravated [i.e., made greater or worse] by . . . the defendant.” Black’s Law Dictionary (4th ed., 1957), p. 467. It is axiomatic that aggravation of the original wrong results in additional — or greater — loss, so that damages awarded as “punitive” or “exemplary” serve the dual function of deterring the tortfeasor and of mitigating the aggravation. If the legislature had intended to exclude punitive damages from the scope of the Code section, it could have done so simply by specifying that uninsured motorist coverage would apply to “all compensatory damages” recoverable by the insured due to the operation of an uninsured motor vehicle, rather than to “all sums” recoverable by the insured “as damages.”

We find the “all sums” terminology to be as inclusive as any language that might have been used in expressing the legislative intent. See State Farm &c. Ins. Co. v. Murphy, 226 Ga., supra at 714. As noted in the concurring opinion, the subsequent language, “because of bodily injury” and “because of injury to or destruction of property of the insured,” appears in subdivisions (A) and (B), respectively, of § 33-7-11 (a) (1), dealing with the limits of the required coverage. When read in proper context, this terminology is merely a limit on the amount of coverage required to be made, such amounts differing in the two categories covered in (A) and (B). Thus properly construed, these limiting phrases provide a meaningful qualification of the requirement that coverage be provided for “all sums the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle.” To read this language as necessarily excluding punitive damages would require one to take the position that such damages do not arise “because of” bodily injury or property damage. In view of the plain language of the statute (and also of the well-settled principle that arguably ambiguous language must be resolved in favor of the insured), to take such a position would be patently absurd. Thus, although we recognize the validity of the time-honored principles expressed in the Latin maxims quoted in the majority’s analysis of § 33-7-11 (a) (1), we find them inapposite to the majority’s contention that the statute does not include punitive damages and that Weathers should therefore be overruled.

Further, careful analysis of Coker v. State Farm Mut. Ins. Co., 193 Ga. App. 423 (388 SE2d 34) (1989) and State Farm Mut. Ins. Co. v. Kuharik, 179 Ga. App. 568 (347 SE2d 281) (1986), as well as of Weathers, reveals no conflict whatsoever between the rationale of Weathers and that of Coker and Kuharik. The holding in each of the three cases is appropriate in the fact situation of each. The fact that in Weathers the tortfeasor is known and is subject to the trial court’s personal jurisdiction clearly distinguishes Weathers from the other two cases and renders not only unnecessary, but incorrect, any notion that the holdings in Kuharik and Coker mandate a reversal of Weathers. Kuharik, in fact, expressly leaves open the question presented in the instant case and in Weathers: “Whether an uninsured motorist carrier could be held liable to its policyholder for punitive damages based on the misconduct of a known tortfeasor over whom the court had acquired personal jurisdiction.”

Moreover, like the author of the concurring opinion, I disagree with the majority’s assertion (Division 3 (a)) that “the purely technical application of the rules of statutory construction” would favor the conclusion that the legislature’s intention was to permit recovery only of compensatory, not punitive, damages. The majority’s public policy arguments are by no means unpersuasive or devoid of validity, as far as they go. A far more comprehensive and persuasive public policy analysis would be required, however, before I would feel compelled, in the face of the unambiguous statutory language, to adopt the extreme and essentially illogical position taken by the majority. Compare, e.g., Emory Univ. v. Porubiansky, 248 Ga. 391 (282 SE2d 903) (1981).

The worst-case scenario proposed by the majority (Division 3) — that “most uninsured motorists are judgment-proof” — is a risk inherent in the nature of uninsured motorist coverage and as such properly falls upon the insurer, not the insured. The insured, whose loss has been increased by the aggravating circumstances not only intangibly but usually substantively as well, will find cold comfort in the majority’s bland assurance that “in the . . . event that there are assets to be levied on, the victim [insured] will have a judgment for punitive damages against the tortfeasor and can reach them.” What is the rationale of requiring the motorist to pay premiums for uninsured motorist coverage when in the end he himself will be put to the trouble and expense of attempting to collect on his judgment?

Decided March 16, 1990

Rehearing denied March 29, 1990

Scott Walters, Jr., for appellant.

Swift, Currie, McGhee & Hiers, Guerry R. Moore, William P. Claxton, for appellees.

Kathryn M. Weigand, William Q. Bird, Frank J. Beltran, amicus curiae.

Moreover, should the majority’s dire prediction that “the added liability would be passed along to the premium payers” be realized, this would be no new thing and arguably would leave the premium-payer no worse off than he was already. It is our observation that there has often been no readily ascertainable or predictable relationship between the insurer’s actual loss experience and the premiums charged the insured. Therefore, such a result as that predicted by the majority would be neither inevitable nor novel. In any case, a remedial statute must be construed to protect the insured (or victim) rather than the insurer.

In short, neither legislative intent, nor statutory language, nor the holdings in Kuharik and Coker, supra, dictates the result sought by the majority. I feel strongly that Weathers represents the correct approach to this complex of issues, and that that case should therefore not be overruled.

I must respectfully dissent.


author: Banke, Presiding Judge. Sognier, Judge,

text:
    A89A1806.
    DRAKE v. PAGE.
    (393 SE2d 89)
   Banke, Presiding Judge.

The appellant, Betty Jean Drake, brought this action against the appellee, Susan Wood Page, to recover damages for injuries sustained in an automobile accident. The case was tried before a jury, which returned a verdict in favor of the appellee-defendant. This appeal is from the denial of the appellant’s motion for judgment notwithstanding the verdict or, in the alternative, a new trial.

The appellee’s vehicle struck the appellant’s vehicle from behind as the appellant was stopped in the roadway behind two other cars, the first of which was apparently awaiting an opportunity to make a left turn onto an intersecting road. It was late afternoon, the weather was clear, and the road was dry. The appellee testified that she was rounding a curve at a speed of between 35 and 40 miles per hour when the accident occurred; and she described the events just prior to the collision as follows: “I momentarily looked down as I was adjusting the air-conditioner, I saw the [brake] lights [of appellant’s car] ahead of me, I tried to stop the car, I skidded and we hit.” The appellee acknowledged that she is slightly nearsighted and was not wearing her glasses but stated that her driver’s license carries no restriction requiring her to wear her glasses while driving.

Testifying as an expert in accident reconstruction, the investigating officer stated that, from the length of the skid marks at the scene, he was of the opinion that the appellee had been traveling at about 40 miles per hour, which was within the 45-mile-per-hour speed limit. He said that although he told the appellee she “would be indicated [in his accident report] as [the] carrier [sic] at fault,” he found insufficient evidence of speeding or following too closely to warrant issuing her a citation. He further testified that the appellee’s actions appeared to him to comport with what the average person would have done under the circumstances. Held:

1. The appellant contends that the evidence demanded a finding that the appellee was at fault in the accident. We agree. The question of who is at fault in a rear-end collision is, of course, normally for the jury. See Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448 (224 SE2d 25) (1976); Glaze v. Bailey, 130 Ga. App. 189-190 (2) (202 SE2d 708) (1973). However, the appellee admitted that she did not have her eyes on the road just before seeing the cars in front of her because she was looking down to adjust her air-conditioner. As for the appellant, she clearly was not at fault, and the trial court so ruled by granting her motion for a directed verdict on the appellee’s affirmative defenses of comparative and contributory negligence. Moreover, no evidence was introduced from which it could reasonably be inferred that the accident was unavoidable or that it “resulted from an unforeseen or unexplained cause.” Reed v. Heffernan, 171 Ga. App. 83, 87 (318 SE2d 700) (1984).

“The driver of a motor vehicle has no right to assume that the road ahead of him is clear of traffic, and he must maintain a diligent lookout therefor.” Leggett v. Brewton, 104 Ga. App. 580 (3) (122 SE2d 469) (1961). Given the appellee’s admission that she was looking down to adjust her air-conditioner as she rounded the curve and given the absence of any circumstances which would suggest that she would not have been able to avoid the accident even if she had been maintaining a diligent lookout, we hold that the trial court erred in refusing to direct a verdict in the appellant’s favor on the issue of liability. Accord Wallace v. Yarbrough, 155 Ga. App. 184, 186 (270 SE2d 357) (1980); Nail v. Green, 147 Ga. App. 660 (249 SE2d 666) (1978). The order denying the appellant’s motion for new trial is accordingly reversed with direction that a new trial be conducted on the issue of damages.

2. Because of our decision in Division 1, we need not consider the appellant’s contentions that the trial court erred in charging the jury on the defense of legal accident or in refusing to charge the jury not to consider her own failure to use her seat belt in considering the issue of liability.

3. In response to what she perceived to be an unreasonable discovery request, the appellant amended her complaint to assert a claim for abusive litigation under Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). She enumerates as error the trial court’s dismissal of this claim following the return of the verdict on the main claim. The trial court based the dismissal of the Yost claim on its conclusion that the appellant’s failure to prevail in the primary action barred her from pursuing it. We agree with the appellant that, under Efstathiou v. Saunders, 189 Ga. App. 470, 471-472 (3) (376 SE2d 413) (1988), this conclusion was incorrect, inasmuch as the Yost claim was not based on allegations that the appellee had asserted a claim or defense which was frivolous but on allegations that she had unjustifiably expanded the proceedings by requesting unnecessary discovery. However, having reviewed the record, we find that the discovery request at issue was within the scope of permissible discovery and did not lack “substantial justification” so as to give rise to a Yost claim. “A correct decision of the trial court will not be reversed, regardless of the reasons given therefor. [Cit.]” Nat. Consultants v. Burt, 186 Ga. App. 27, 33 (2) (366 SE2d 344) (1988). The order dismissing the Yost claim is accordingly affirmed.

Judgment affirmed in part and reversed in part.

Carley, C. J., Been, P. J., McMurray, P. J., Birdsong and Cooper, JJ., concur. Sognier, Pope and Beasley, JJ., dissent.

Sognier, Judge,

dissenting.

I respectfully dissent. I would uphold the jury’s verdict because there was evidence from which the jury was authorized to conclude appellant had not proved either that appellee was negligent or that any negligence of appellee proximately caused the collision. Compare Glaze v. Bailey, 130 Ga. App. 189-190 (2) (202 SE2d 708) (1973). “There was proof of the accident and of how it occurred, and the proof may be sufficient to raise an inference of negligence on the part of the [appellee]. But the [appellee] offered an explanation of her conduct which the jury may very well have concluded was sufficient to take her conduct out of the realm of negligence. . . .” Simpson v. Brand, 108 Ga. App. 393, 397 (133 SE2d 393) (1963). Appellee testified that “I put on my brakes, I began to skid and I tried to veer off to the right-hand side of the road, hoping to miss [appellant’s] car.” Although appellee testified that she briefly looked down to adjust her air-conditioner, there was no evidence that action either precluded her from stopping as quickly as she otherwise could have or caused her to collide with appellant. Similarly, appellee’s failure to wear her glasses was not shown to be the proximate cause of her failure to stop in time. Further, Lt. Morris’s testimony was sufficient to create an inference that appellee operated her car with ordinary prudence under the circumstances. Contrary to the majority’s conclusion, I find this evidence did raise a question as to whether the collision “resulted from an unforeseen or unexplained cause,” Reed v. Heffernan, 171 Ga. App. 83, 87 (2) (318 SE2d 700) (1984), rather than any negligence of appellee, and thus presented á question for resolution by the jury. See Simpson, supra.

Decided March 16, 1990

Rehearing denied March 29, 1990

David G. Kopp, for appellant.

Chambers, Mabry, McClelland & Brooks, V. Jane Reed, Jack G. Slover, Jr., for appellee.

“We will not weigh the evidence, and in fact are precluded from doing so. [Cits.] In the absence of legal error, an appellate court is without jurisdiction to interfere with a verdict supported by some evidence even where the verdict may be against the preponderance of the evidence. [Cits.] We will not speculate as to what evidence the jury chose to believe or disbelieve; on appeal, this court is bound to construe the evidence with every inference and presumption being in favor of upholding the jury’s verdict, and after the verdict is approved by the trial judge, the evidence must be construed so as to uphold the verdict even where there are discrepancies. [Cits.]” Williams v. Stankowitz, 149 Ga. App. 865, 866 (256 SE2d 147) (1979).

I am authorized to state that Judge Pope and Judge Beasley join in this dissent.


author: Carley, Chief Judge. Beasley, Judge, Deen, Presiding Judge,

text:
    A89A1850.
    STORER COMMUNICATIONS, INC. et al. v. BURNS et al.
    (393 SE2d 92)
   Carley, Chief Judge.

Appellee-plaintiff’s wife died after she lost control of her vehicle and then struck another vehicle that was parked in the emergency lane of an interstate highway. The vehicle with which appellee’s deceased collided was owned by appellant-defendant Storer Communications, Inc., and had been parked in the emergency lane by its employee, appellant-defendant Winzurk. Appellee brought suit against appellants, seeking to recover for the death of his wife. Appellants answered and subsequently moved for summary judgment. The trial court denied appellants’ motion but certified its order for immediate review. This Court granted appellants’ application for an interlocutory appeal from the denial of their motion for summary judgment.

Construed most favorably for appellee, the evidence shows the following: On an overcast and rainy morning, appellant Winzurk was dispatched to report on the occurrence of a four-car collision on the interstate highway. Arriving at the scene, he parked in the emergency lane, turned on his emergency blinkers, and exited his vehicle. Traffic had become congested as the result of the four-car collision and, as appellee’s deceased approached the scene, she moved from the center to the left lane. According to the motorist who was in the vehicle behind her, “her car, the back end of it did . . . just like that and . . . like a little fishtail. . . . [H]er car immediately veered off into the left-hand guard rail. She went into that guard rail median, and the car came off of that guard rail and went flying back down and made a turn as it went back down and . . . that car hit into [appellants’ vehicle], kind of on this left-hand back corner area and then that car went off into a ravine.” On this evidence, appellants urge that their motion for summary judgment should have been granted because any negligence in parking the vehicle in the emergency lane has been eliminated as a proximate cause of the collision and also because appellee’s recovery is barred by the contributory negligence of his deceased.

“ ‘Questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and indisputable cases.’ ” Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448 (224 SE2d 25) (1976). Accordingly, unless this is one of those “plain and indisputable cases,” the trial court’s denial of summary judgment in favor of appellant-defendants was proper.

The act of appellant Winzurk in parking in the emergency lane of the limited access highway was negligence per se. OCGA § 40-6-203 (a) (1) (I). The purpose of that statutory prohibition is to protect other drivers from striking a stationary vehicle. Blake v. Continental Southeastern Lines, 161 Ga. App. 869, 872 (1) (289 SE2d 551) (1982). Appellee’s deceased was another driver who struck the negligently parked stationary vehicle. There was no act of a third party which intervened between the negligence in parking the vehicle in the emergency lane and the collision with that negligently parked vehicle. Compare Gulf Oil Corp. v. Stanfield, 213 Ga. 436 (99 SE2d 209) (1957) (intervening negligent acts of third parties); Baughcum v. Cecil Key Paving, 190 Ga. App. 21 (378 SE2d 151) (1989) (intervening negligent acts of third parties); Southern Bell Tel. &c. Co. v. Dolce, 178 Ga. App. 175 (342 SE2d 497) (1986) (intervening negligent act of third party); Standard Oil Co. v. Harris, 120 Ga. App. 768 (3) (172 SE2d 344) (1969) (intervening negligent act of third party); Cain v. Ga. Power Co., 53 Ga. App. 483, 486 (186 SE 229) (1936) (intervening negligent act of third party); Morrison v. Columbus Transp. Co., 39 Ga. App. 708 (1) (148 SE 276) (1929) (intervening negligent act of third party).

The only act which intervened between the negligence in parking the vehicle and the collision was the act of appellee’s deceased herself in losing control of her vehicle. This would show that “but for” the act of appellee’s deceased, the collision with the parked vehicle would not have occurred. However, “but for” the act of the driver of any vehicle that strikes another stationary vehicle, such a collision would not occur. “[T]he inquiry is not whether if [appellee’s deceased] had not acted in the manner that she did the injury complained of would not have occurred, but is whether her acts were negligent and if so, whether they were or were not a contributing cause, or whether they were the sole proximate cause. If her acts in the transaction . . . were not negligent, i.e. if she acted just as an ordinary prudent person would have acted under similar circumstances, her conduct is to be considered only as a part of the normal course of human affairs. It matters not so much where the accident happened, as it does how and why the accident occurred at the place it did occur.” (Emphasis in original.) Carter v. Powell, 57 Ga. App. 360, 370 (1) (195 SE 466) (1938). It cannot be denied that the collision occurred at the place that it did only because another vehicle was negligently parked in the emergency lane. Even assuming that it may not have been foreseeable that, under the existing circumstances a collision with the negligently parked car would occur as the result of hydroplaning, it cannot be said that, as a matter of law, it was not foreseeable that a collision would somehow occur. “In order for a party to be liable as for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient, if in ordinary prudence he might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might result. [Cits.]” Williams v. Grier, 196 Ga. 327, 337-338 (2) (26 SE2d 698) (1943). Appellants’ anomalous assertion that, as a matter of law, the violation of a statute to protect drivers from striking stationary vehicles cannot be found to be a proximate cause of any injuries that may have resulted from another driver’s collision with a negligently parked vehicle is without merit.

Appellants’ further assertion that their motion for summary judgment should have been granted because appellee’s recovery is barred by the contributory negligence of his deceased is likewise without merit. “[I]f [appellants were] guilty of one or more of the acts of negligence as alleged, and it does not appear that some other cause, such as the negligence, if any there was, of [appellee’s deceased], so preponderated in bringing about the result, that the human probabilities are that the injury would just as likely have ensued, if the negligent acts of [appellants] had not occurred, [appellee] should recover. If it does appear that [appellee’s deceased] was negligent, and that although [appellants] might also have been guilty of negligence, that [her] negligence so preponderated in bringing about the result that the human probabilities are that the injury would just as likely have ensued if the negligent acts of [appellants] had not occurred, [appellee] should not recover. However, if both were negligent and their negligence stands so related that neither would have produced the harmful result, and the negligence of one has not so intervened as to make it the preponderating cause, and the negligence of both consist of such acts as, according to the general course of human probabilities, produce some such injurious effect as that which did in fact ensue, in such case, both are guilty of concurring negligence, and the recovery of [appellee] should be reduced in the proportion that [his deceased’s] negligence contributed to the injury, except of course, if that proportion be one-half or more, there should be no recovery. [Cit.]” Carter v. Powell, supra at 369-370 (1). Because these questions do not have “plain and indisputable” answers under the evidence of record and must be resolved by a jury, the denial of appellants’ motion for summary judgment is affirmed.

Judgment affirmed.

McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope and Cooper, JJ., concur. Beasley, J., concurs specially. Deen, P. J., dissents.

Beasley, Judge,

concurring specially.

This case, as it is presented to us, revolves around the proximate cause element of tort. I concur in the contributory negligence portion of the majority opinion and in the judgment. I see the proximate cause aspect as related to Winzurk and Storer in a somewhat different way.

Several additional facts evidenced help paint a clearer picture. When Burns’ vehicle collided with the Suburban, the latter was lifted into the air. Mrs. Burns suffered injuries from which she later died. The BMW was extensively damaged on the left side, behind the front quarter panel, with the worst damage being in the driver’s door area and the area immediately behind it. The impact compressed the car sideways and the roof buckled. The impact area on the Suburban was on the rear and the impact pushed its rear wheels completely off the pavement. It ended up nearly perpendicular to the police car in front of it.

As recognized in the majority opinion, the issue of proximate cause starts with the given that Winzurk’s parking on the emergency lane is negligence per se. OCGA § 40-6-203 (a) (1) (I).

“ ‘To state a cause of action for negligence, there must be a legally attributable causal connection between the defendant’s conduct and the alleged injury.’ [Cits.] The inquiry is not whether the defendant’s conduct constituted a cause in fact of the injury, but rather whether the causal connection between that conduct and the injury is too remote for the law to countenance a recovery. [Cit.] In Georgia, questions of negligence and proximate cause are ordinarily reserved for the jury, but in plain and undisputed cases the court may make a determination as a matter of law. [Cits.]” Hercules v. Lewis, 168 Ga. App. 688 (309 SE2d 865) (1983); quoted in Southern Bell Tel. &c. v. Dolce, 178 Ga. App. 175, 176 (1) (342 SE2d 497) (1986).

The applicable measurement distinguishing proximate from remote is stated in OCGA §§ 51-12-8 and 51-12-9. “If the damage incurred by the plaintiff is only the imaginary or possible result of a tortious act or if other and contingent circumstances preponderate in causing the injury, such damage is too remote to be the basis of recovery against the wrongdoer.” OCGA § 51-12-8. “Damages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be recovered. However, damages traceable to the act, but which are not its legal and natural consequence, are too remote and contingent to be recovered.” OCGA § 51-12-9. The measurement is paraphrased in Gulf Oil v. Stanfield, 213 Ga. 436, 438 (99 SE2d 209) (1957). See also McAuley v. Wills, 251 Ga. 3, 6 (5) (303 SE2d 258) (1983); Western Stone & Metal v. Jones, 180 Ga. App. 79, 80 (348 SE2d 478) (1986); Southern Bell Tel. &c., supra.

It is true that there were numerous circumstances and actors creating the setting and activity which led to Mrs. Burns’ death. The drivers of the four vehicles in the original wreck presented an emergency which precipitated the evasive action taken by Burns and Rev. West. But for Burns’ BMW hydroplaning, there would have been no collision with the Suburban. It is assumed at this stage that this was not the result of Burns’ negligence. See Barlow v. Veber, 169 Ga. App. 65, 66 (1) (311 SE2d 501) (1983); Ford v. Pinckney, 138 Ga. App. 714, 716 (3) (b) (227 SE2d 430) (1976).

Given the fact that, for whatever reason, Burns was inexorably headed towards an accident and injuries even if the Suburban was absent, the evidence is not conclusive that she would have been killed whether the Suburban was present or not. It is a reasonable inference that she would have gone into the ravine as did other cars earlier and been injured but not killed. In other words, the evidence is not conclusive that the presence of the Suburban was not the last supervening, or efficient, or nearest cause of the particular injury she suffered, i.e., death, as opposed to a lesser injury. It is not plain, palpable, and indisputable that the particular injury complained of, death, would have occurred if her uncontrolled course of movement had not been altered by the Suburban. Cf. Hollingsworth v. Harris, 112 Ga. App. 290 (145 SE2d 52) (1965).

If the presence of the Suburban proximately contributed to her death (as opposed to injury short of death), even if it was not the sole cause, plaintiffs could recover some percentage so long as 50 percent or more of the proximate cause was not attributable to her.

Thus, jury questions remain as to whether the unlawful presence of the Storer vehicle was a proximate cause of Mrs. Burns’ death.

Deen, Presiding Judge,

dissenting.

The drivers of the four vehicles in the original wreck presented an emergency which precipitated the evasive action taken by Burns and Rev. West. But for Burns’ BMW hydroplaning, there would have been no accident. It is assumed this was not the result of Burns’ negligence. See Barlow v. Veber, 169 Ga. App. 65, 66 (1) (311 SE2d 501) (1983); Ford v. Pinckney, 138 Ga. App. 714, 716 (3b) (227 SE2d 430) (1976). Rev. West avoided the wreck by going through the left lane after Burns’ vehicle hydroplaned out of control. Thus, the hydroplaning of Burn’s car as a result of the initial wreck was the legally precipitating cause of her injuries and the proximate cause without which the accident would not have happened.

Photographer Winzurk’s Chevrolet Suburban was merely the stable object her car struck. Such is not enough to amount to a proximate cause. Gulf Oil v. Stanfield, 213 Ga. 436, 439 (99 SE2d 209) (1957) (illegal erection of sign pole struck by deceased not efficient cause of injury); Baughcum v. Cecil Key Paving, 190 Ga. App. 21, 23 (2) (378 SE2d 151) (1989) (improperly placed signs not legal cause of injury); Southern Bell Tel. &c. v. Dolce, 178 Ga. App. 175, 176 (1) (342 SE2d 497) (1986) (phone booth struck by car not legal cause of injury to passengers); Standard Oil v. Harris, 120 Ga. App. 768, 770-771 (3) (172 SE2d 344) (1969) (the assumed improper construction of building not legal cause of fire caused by improperly removed gas cap); Cain v. Ga. Power, 53 Ga. App. 483, 485-486 (186 SE 229) (1936) (illegally parked bus not proximate cause of injury to pedestrian who was obscured by bus); Morrison v. Columbus Transp. Co., 39 Ga. App. 708, 710 (148 SE 276) (1929) (illegally parked car which obstructed pedestrian’s view not proximate cause of motorcycle’s striking pedestrian); Hollingsworth v. Harris, 112 Ga. App. 290 (145 SE2d 52) (1965) (truck stopped in roadway but no causal connection shown).

Decided March 16, 1990

Rehearing denied March 29, 1990

Alston & Bird, Judson Graves, Bryan A. Vroon, for appellants.

Daniel T. Donohue, Albert S. Johnson, Wade H. Watson III, Sharon W. Ware, for appellees.