text:
    A91A1374.
    WILLIAMS v. THE STATE.
    (413 SE2d 256)
   Pope, Judge.

Defendant Virgil Lee Williams consented to a bench trial and was convicted of robbery and aggravated assault. A previous trial of the case had ended in mistrial because the victim, a stroke victim in his sixties, was unable to complete his testimony or to submit to cross-examination as a result of his deteriorated health. On retrial, the victim was not called as a witness due to his physical inability to testify. Instead, the State submitted the testimony of one who was the victim’s neighbor at the time the offenses were committed. She testified that at approximately 2:30 or 3:00 p.m. on the day in question the victim came to her house. His face was bloody and he had a cut on his head. When she asked him what happened he replied that the boy who had driven him to Lake City hit him and robbed him. Though the witness did not know the name of the person, she knew who had driven the victim to visit his brother in Lake City, Florida, and she identified that person as the defendant. The trial court ruled that the hearsay testimony of the victim’s neighbor was not part of the res gestae of the crimes and excluded the testimony from evidence.

The conviction was thus based only on the remaining evidence which included a written statement voluntarily made by the defendant after he had made a written waiver of his constitutional rights in which he admitted the following: He had driven the victim on several errands and the victim owed him money for these services. The victim told defendant to come to his apartment at 2:30. Defendant arrived at the victim’s apartment about 2:00 and the victim let him in. When defendant asked the victim if he had the money, the victim pointed his walking stick at defendant and told him he would be paid on the third. (The trial judge took judicial notice that Social Security benefit checks are typically received on the third day of the month.) Defendant admitted he pushed the victim “into his table and then he gave me my money . . . .” The evidence also showed the victim’s wallet, with no money in it, was found in the neighborhood and turned in to the police.

Defendant argues the hearsay testimony of the victim’s neighbor was properly excluded and the remaining evidence was insufficient to support his conviction. We agree that the defendant’s statement, along with the found wallet, is insufficient to support the conviction. Although the defendant admits he struck the victim, the facts he admitted are insufficient to prove aggravated assault or robbery. The acts admitted by defendant do not establish assault with an offensive weapon or assault with intent to rob. See OCGA § 16-5-21 (a). According to defendant’s statement, he was owed the money that the victim “gave” him after he was pushed. No evidence was submitted to connect the found wallet with the defendant.

We disagree, however, that the hearsay testimony was properly excluded. The facts of this case are similar to those in Tucker v. State, 243 Ga. 683 (3) (256 SE2d 365) (1979), in which the Supreme Court held that an outcry made by a rape victim to one she immediately sought out within one hour from the commission of the crime was sufficiently contemporaneous to be a part of the res gestae and was therefore admissible. Here, the facts show the victim was an older man in ill health who lived alone and who, within minutes after the acts admitted by the defendant, sought the help of his neighbor. His declarations about his condition and what had happened to him were admissible as an exception to the hearsay rule and the trial court erred in excluding them from evidence.

Neither was the hearsay testimony inadmissible because the defendant was denied the right to confront the witness. The Confrontation Clause does not require the exclusion of hearsay testimony if it is shown that the declarant is unavailable to testify and that the out-of-court statement bears adequate “indicia of reliability.” Ohio v. Roberts, 448 U. S. 56, 66 (100 SC 2531, 65 LE2d 597) (1980). “Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least without a showing of particularized guarantees of trustworthiness.” Id. Here, the victim’s unavailability to testify was well-established by his physical inability to testify at the first trial of the case. The out-of-court declaration was a part of the res gestae and therefore was a well-recognized exception to the hearsay rule. The trustworthiness of the statement is guaranteed by the fact that it was, in effect, an immediate outcry of the victim to a neighbor for help. Thus, the error in this case is merely “trial error” which does not bar retrial, and is not a determination that the State failed to make its case against the defendant. See Daniels v. State, 165 Ga. App. 397 (1) (299 SE2d 746) (1983). “In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.” (Emphasis supplied and punctuation omitted.) Hall v. State, 244 Ga. 86, 94 (5) (259 SE2d 41) (1979) (quoting Burks v. United States, 437 U. S. 1 (98 SC 2141, 57 LE2d 1) (1978)).

Judgment reversed.

Birdsong, P. J., concurs. Cooper, J., concurs in judgment only.

Decided November 26, 1991.

Andrews & Seery, Stephen H. Andrews, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A91A1408.
    KNUDSON v. LENNY’S, INC.
    (413 SE2d 258)
   Cooper, Judge.

This is an appeal from the trial court’s grant of summary judgment to appellee.

Appellant, his wife and his wife’s friend went to a bar and night club owned by appellee. In the early morning hours, appellant got into an argument with his wife, whereupon she walked out of the bar, passing two other customers who were standing in an area on the way to the exit. Appellant states that the customers smiled and said something to his wife as she walked by but his wife continued out the door. Appellant followed his wife and brushed against one of the customers on his way out of the bar. According to appellant, that customer turned around and shouted obscenities to appellant at which point appellant turned back around, took a step back and told him to watch his mouth. Appellant stated that as he was preparing to continue following his wife, the customer struck him in the face with either a bottle or a bar glass. Appellant estimated that five seconds elapsed between the time the customer yelled and the time appellant was hit. The customer who struck appellant, Eric Scoggins (“Scoggins”), stated that appellant brushed up against him as appellant walked to the exit, and Scoggins asked appellant if he were in a hurry. According to Scoggins, appellant then asked Scoggins if there was a problem and pushed Scoggins’ chest with his hands. Scoggins stated that he responded by striking appellant with the glass. Immediately after the incident, Scoggins and appellant were separated by another customer and an employee of appellee. Appellee’s employees then called the police. Scoggins had not created any disturbance prior to the fight with appellant.

The general manager of the bar, whose wife was the sole owner of appellee, testified that he had established his own policy in the bar of prohibiting persons under age 21 from being present without a parent or guardian after 9:00 p.m. The owner stated that this policy did not stem from any prior problems with boisterous teenagers, but the policy was instituted because he was attempting to create an adult environment in his club and kids under 21 did not need to be in an adult environment. The owner also indicated that an underage person may want to take drinks that did not belong to them, and the owner did not want to police the underage group for this problem. The owner stated that he employed people to stand at the door and an off-duty policeman to monitor any arguments that arose, to insure that situations did not get out of hand and to resolve problems as quickly as possible. Several people testified that Scoggins appeared to be in his early to mid twenties. The police report from the night of the incident lists him as being 22 years old; however, Scoggins was in fact 20 years old when the incident occurred. Appellant, who suffered severe lacerations to his face, sued appellee for negligence on the grounds that appellee failed to keep its premises safe and failed to protect its invitees. The trial court, after considering the record, granted appellee’s motion for summary judgment, concluding that there was no causative link between the acts of negligence alleged by appellant and appellant’s injuries. Appellant appeals and alleges in two enumerations of error that there are genuine issues of fact as to whether appellee had a duty of care to appellant, whether appellee negligently performed that duty and whether appellee’s negligence was the proximate cause of appellant’s injuries.

Appellant argues strenuously that appellee is liable because appellee undertook to exclude minors from the club and appellee’s negligent performance of that duty was a proximate cause of appellant’s injuries. Although we render no opinion as to appellee’s alleged negligence in performing this duty, we nevertheless conclude that if such negligence did occur, it was not the cause of appellant’s injuries. “ ‘It is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s act, and which was sufficient of itself to cause the injury.’ [Cit.]” Levangie v. Dunn, 182 Ga. App. 439 (1) (356 SE2d 88) (1987). Therefore, “ ‘an injured person seeking to impose liability upon another for the negligent performance of a voluntary undertaking must show either detrimental reliance or an increased risk of harm. . . .’ [Cit.]” Grandma’s Biscuits v. Baisden, 192 Ga. App. 816 (2) (386 SE2d 415) (1989). Appellee’s general manager testified that his policy of excluding minors was not created in contemplation of acts as occurred in this case or any similar acts. Simply enacting such a policy does not render appellant’s injury foreseeable to appellee. Appellant argues that because fights and arguments in general are predictable in a drinking establishment, then the issue of foreseeability in this particular case should become a jury question. We disagree. There is no evidence indicating that appellee or its employees were aware, or should have been aware, that Scoggins may react as he did. Nor is there any evidence that appellee or its employees were aware, or should have been aware, of any propensity of persons under age 21 to react as Scoggins did. In addition, appellant “has not alleged that he was aware of or acted in reliance upon any undertaking by the [appellee] to [exclude persons under 21 after 9:00 p.m.], nor has he alleged that the [appellee’s] efforts in this regard increased the risk thát an assault might occur.” Grandma’s Biscuits, supra at 818. Since Scoggins’ actions were not foreseeable to appellee, and since those actions intervened between the alleged negligent act of appellee and the injury to appellant, the element of proximate cause is not present. Although foreseeability is typically a question for the jury, the instant case is an exception in that the evidence is “plain, palpable and undisputable.” Levangie, supra at 441.

Decided November 26, 1991.

Bauer, Deitch & Raines, Gilbert H. Deitch, George R. Ference, for appellant.

Duncan & Mangiafico, Edgar S. Mangiafico, Jr., Leslie P. Becknell, for appellee.

Appellant next contends that appellee is liable for negligently performing his duty to provide security for its patrons. We find that the evidence is clear and indisputable that no negligence occurred. All the testimony confirms that appellee’s employees came to the scene of the fight immediately and promptly deescalated the tensions, cared for the parties and called the police. Appellant testified that only five seconds elapsed from the time Scoggins shouted to them to the time he was hit. Appellant presents no evidence to show that appellee could have prevented the incident from occurring with a different security system in place. “A landowner does not become an insurer of safety by taking some security precautions on behalf of invitees. Undertaking measures to protect patrons does not heighten the standard of care; and taking some measures does not ordinarily constitute evidence that further measures might be required.” Lau’s Corp. v. Haskins, 261 Ga. 491 (3) (405 SE2d 474) (1991). Contrary to the cases cited by appellant, there has been no evidence presented in this case to show that appellee failed to provide adequate security or that any such failure resulted in appellant’s injuries.

Appellant cites no authority or evidence to support his argument that appellee is negligent because appellee’s employees were serving appellant drinks, thereby placing him in a more vulnerable position to attack. We decline to adopt appellant’s argument.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A91A2061.
    ROLLINS v. THE STATE.
    (413 SE2d 261)
   McMurray, Presiding Judge.

Terry Randy Rollins, also known as T. C. Rollins, was convicted of possession of methamphetamine with intent to distribute and he appeals. Held:

1. Pursuant to a search warrant, members of the Forsyth, Pick-ens, Jasper Drug Task Force searched a mobile home in Forsyth County. Defendant and two juveniles (defendant’s brother and his friend) were in the home. Searching defendant’s person, the officers found a syringe in his pocket. The syringe contained suspected contraband. Defendant was arrested and taken away. The officers continued to execute the search warrant. The entire search took two or three hours.

In the midst of the search, a vehicle approached the mobile home. A man exited the vehicle and knocked on the door. One of the officers stepped into a bedroom. Another answered the door and told the man to “Come on in.”

The man asked, “Is Terry here?” The officer replied, “No, Terry’s downtown doing some business and told me to take care of business for him.” The officer asked the man what he needed. He said, “I need a half.” The officer asked “How much has Terry been charging you?” At that point, the man produced $40 and the officer arrested him, seizing the $40.

Defendant contends the foregoing evidence was inadmissible because it constituted similar transaction evidence and defendant did not receive ten days written notice of the State’s intent to introduce it pursuant to Uniform Superior Court Rule 31.3. We disagree.

“Our new Uniform Superior Court Rules (effective July 1, 1985) provide that if the prosecution intends to present evidence of similar transactions to those charged it may notify the court prior to trial and request a ruling. Rule 31.3 (A). Such notice shall be served on the defendant’s counsel. Rule 31.3 (B). If prior approval is not obtained, evidence of similar transactions shall be inadmissible. Rule 31.3 (C). However, there is an exception. ‘Nothing in this rule is intended to prohibit the state from introducing evidence of similar transactions or occurences which are lesser included alleged offenses of the charge being tried, or are immediately related in time and place to the charge being tried, as part of a single, continuous transaction.’ Rule 31.3 (E).” Presley v. State, 177 Ga. App. 611, 614 (340 SE2d 253).

The evidence complained of occurred after defendant’s arrest while the officers were completing a search of the premises. It is “sufficiently related in time and place, and is a part of one continuing transaction, and a part of the res gestae, so as to come within the parameters of Rule 31.3 (E).” Presley v. State, 177 Ga. App. 611, supra at 614. See also Williams v. State, 182 Ga. App. 849 (357 SE2d 301). “The fact that it incidentally places defendant’s character in issue does not render it inadmissible. Lenear v. State, 239 Ga. 617, 619 (238 SE2d 407); Mosley v. State, 150 Ga. App. 802, 804 (258 SE2d 608).” Presley v. State, 177 Ga. App. 611, supra at 614.

Decided November 26, 1991.

Roman A. DeVille, for appellant.

Garry T. Moss, District Attorney, C. David Turk III, Assistant District Attorney, for appellee.

In passing, we note that the evidence was relevant to demonstrate that defendant “was in fact maintaining direct contact with the residence being searched contrary to [his contention] that this was not his residence. It also established that defendant could have been or was in direct contact with the controlled substances found at the residence. . . . The substance of the . . . conversation was also admissible to identify the defendant and to demonstrate his modus operandi. [Cits.]” Teems v. State, 161 Ga. App. 339 (287 SE2d 774).

2. During the search of the premises, the officers came upon an electrical box which had been hidden behind a bed. Inside the box, the officers discovered a large quantity of a white powdery substance in a clear plastic bag. Tests performed on the substance revealed it to be nothing more than a common household item. Nonetheless, the substance was put into evidence over defendant’s objection that it was unduly prejudicial. Since the jury was made well aware of the fact that the substance was not contraband, we can see no prejudicial error.

3. Defendant complains that the trial court permitted the State to introduce a letter and a “beeper” taken from the premises as well as the $40 which the officer seized from the intruder at the time of his arrest. We find no error. The letter, addressed to “T.C.,” was relevant to connect defendant to the premises. The beeper and the $40 were introduced after defendant cross-examined the officer and asked him (1) if defendant had a beeper and (2) why the money was not listed on an inventory sheet.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A2097.
    WEBB et al. v. TATUM et al.
    (413 SE2d 263)
   McMurray, Presiding Judge.

Plaintiffs brought suit against Gary Steven Tatum and Robinson Wrecker Service on October 11, 1989, seeking damages stemming from a February 2, 1988, automobile collision. Service was to be made upon defendant Tatum at 1473 Flat Rock Road in Henry County, Georgia.

An “Entry of Service” was made on October 21, 1989. It recites that defendant Tatum was served “at his most notorious place of abode” by leaving a copy of the complaint and summons with Dennis Tatum, defendant Tatum’s brother. A second “Entry of Service,” made on March 5, 1990, recites that after a “diligent search,” defendant Tatum was “not to be found in the jurisdiction of this Court.” Service was not attempted upon defendant Robinson Wrecker Service.

On April 10, 1990, defendants answered the complaint and asserted, inter alia, an insufficiency of service of process defense. Thereafter, on August 3, 1990, defendants moved to dismiss the complaint “on the grounds that service has never been properly perfected on either defendant and the action [was then] barred by the statute of limitations . . .’’In support of the motion, defendant Tatum submitted an affidavit in which he deposed that he lived with his mother at 1515 Flat Rock Road since 1986; that his brother, Dennis Tatum, lived at 1473 Flat Rock Road for approximately ten years; and that he never lived at that address or considered it to be his permanent residence. Additionally, defendant Tatum submitted the affidavit of his brother who deposed that he lived at 1473 Flat Rock Road for ten years; that defendant Tatum never lived with him at that address; and that, on October 21, 1989, he explained to the deputy who delivered the summons and complaint that defendant Tatum did not live at 1473 Flat Rock Road.

In opposition to defendants’ motion to dismiss, plaintiffs submitted the affidavits of Eugene R. Kiser, their attorney, and Olin Couch. Kiser deposed that he employed an investigator to discover the whereabouts of defendant Tatum because he did not live at the address which appeared on the accident report; that “after much investigation, it was determined that [defendant Tatum] lived and worked for his brother ... at Tatum Wrecker Service, 1473 Flat Rock Road . . .”; and that he relied on the sheriff’s return of service “as being valid service. . . .” He also deposed that approximately one month before the statute of limitation ran out, he received a telephone call from a person who identified himself as Gary Tatum; that that person said he “received the lawsuit papers” and wanted to know what to do about them; and that he told that person to “take the papers to the insurance company. . . .”

Olin Couch deposed that he was asked by Eugene R. Kiser to find out where defendant Tatum lived; that a barber in Stockbridge, Georgia, told him that defendant “Tatum lived at the yellow house on Flat Rock Road”; that the address of the yellow house on Flat Rock Road was 1473; that he observed a wrecker truck marked “Tatum Wrecker Service” at that address; and that he “then reported to Eugene Kiser’s law office that [defendant Tatum] lived and worked out of 1473 Flat Rock Road.”

Couch deposed further that “the 1988 Georgia Uniform Motor Vehicle Accident Report shows that [defendant Tatum] reported to the investigating officer that he lived at 629 Tennelle Street, S.E. in Atlanta, Georgia”; that the accident report “obviously cast doubt on the veracity of [defendant Tatum]”; that, in June or July of 1990, he called Tatum Wrecker Service and asked where defendant Tatum was living; and that the “girl who answered the telephone told me that [defendant Tatum] was living with his mother in Summerville, Georgia.”

The trial court granted defendants’ motion to dismiss the complaint. Plaintiffs appeal. Held:

OCGA § 9-11-4 (d) (7) provides that service shall be made by delivering a copy of the summons and a copy of the complaint to the defendant personally or by leaving copies at his dwelling or usual place of abode with someone of suitable age and discretion residing therein. Were copies of the summons and complaint left at defendant Tatum’s dwelling or usual place of abode?

“ ‘The entry of service of the sheriff or his deputy imports verity.’ Rupee v. Mobile Home Brokers, 124 Ga. App. 86, 88 (183 SE2d 34). The return of service is not conclusive, but it is evidence of a high order as to the facts recited therein, and it may be traversed and impeached by proof that such facts are untrue. However, it can only be set aside by evidence which is not only clear and convincing but the strongest of which the nature of the case will admit. [Cits.] The burden to show error in matter reflected in a return of service is on the defendant. [Cits.]” Wolfe v. Rhodes, 166 Ga. App. 845, 846, 847 (305 SE2d 606).

Whether evidence is sufficient to overcome facts reflected in a return of service is a matter addressed to the discretion of the trial court. Adair Realty Co. v. Parrish, 192 Ga. App. 681 (385 SE2d 770). See also Williams v. Mells, 138 Ga. App. 60, 61 (225 SE2d 501). “While the return of service constituted prima facie evidence that . . . service was made upon [defendant Tatum], the affidavits submitted by [defendant Tatum] created a factual dispute to be resolved by the factfinder, the trial court. [Cit.] ” Terrell v. Porter, 189 Ga. App. 778 (1) (377 SE2d 540). We have no hesitation in concluding that the evidence presented by defendants was sufficient to support the trial court’s determination that defendants were not properly served with process. See Adair Realty Co. v. Parrish, 192 Ga. App. 681, supra; Terrell v. Porter, 189 Ga. App. 778 (1), supra.

The mere fact that defendant Tatum may have obtained actual knowledge of the lawsuit is of no consequence. Bible v. Bible, 259 Ga. 418 (383 SE2d 108); Terrell v. Porter, 189 Ga. App. 778, 779, supra. “[T]here is no authority to dispense with the clear requirements of OCGA § 9-11-4 (d) (7) merely because the defendant may otherwise obtain knowledge of the filing of the action.” Bible v. Bible, 259 Ga. 418, 419, supra.

Decided November 26, 1991.

Eugene R. Kiser, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Douglas A. Wilde, Robert W. Browning, for appellees.

The trial court did not err in granting defendants’ motion to dismiss.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


author: Pope, Judge.

text:
    A91A1028.
    MAXWELL et al. v. HOSPITAL AUTHORITY OF DADE, WALKER & CATOOSA COUNTIES.
    (413 SE2d 205)
   Pope, Judge.

Plaintiff/appellant Rita Maxwell was employed by defendant/appellee the Hospital Authority of Dade, Walker and Catoosa Counties, d/b/a Hutcheson Medical Center/Tri-County Hospital, as a patient representative. Plaintiff and her husband brought suit against the hospital contending it was negligent in failing to provide adequate security after plaintiff was robbed, raped and beaten in the employee parking lot. Plaintiffs appeal from the trial court’s order denying summary judgment to plaintiffs and granting summary judgment to defendant on the basis that plaintiffs’ tort action was barred by the exclusive remedy provisions of the Workers’ Compensation Act.

The essential facts in this case are not in dispute. Mrs. Maxwell worked at the hospital two days a week from 9:30 a.m. to 6:00 p.m. and two days a week from 6:00 p.m. to 2:30 a.m. The days Mrs. Maxwell worked varied from week to week and her work schedule was posted six weeks in advance in the nurses’ lounge. Only employees of the hospital and Mrs. Maxwell’s immediate family were familiar with her schedule. The incident giving rise to plaintiffs’ lawsuit occurred on May 6, 1990, as Mrs. Maxwell was leaving work after her shift ended at 2:30 a.m. The record shows Mrs. Maxwell was the only employee of approximately 100 on duty at that time whose shift ended at 2:30 a.m. and that she walked to her car alone. Mrs. Maxwell testified that although she was the only employee whose shift ended at that time, she had been instructed by her supervisor not to request a security guard to accompany her to her car. Mrs. Maxwell estimated over 100 cars were in the parking lot at the time she was attacked. She stated that she had just laid her jacket on the hood of her car when someone came up behind her and put a rope over her neck. Mrs. Maxwell testified in her deposition that she was unaware of anyone else being in the parking lot until she felt the rope go around her neck, but she believed, because of the configuration of the other cars in the parking lot, that her assailant was hiding behind her car prior to the attack. The record also shows that at the time of the attack Mrs. Maxwell was not wearing certain jewelry which she customarily wore to work and that her assailant questioned her concerning the whereabouts of this jewelry. Likewise, Mrs. Maxwell testified she usually wore pants to work but at the time of the attack she had on a dress and her assailant remarked to her before he raped her that it was a “good thing” that she wore a dress “this time” instead of pants. Mrs. Maxwell stated she thought her assailant was alone until someone hollered at one point during the attack for him to hurry up because someone was coming. Mrs. Maxwell could not identify the assailant and neither he nor the “look-out” was ever apprehended.

Plaintiffs contend the trial court erred in granting defendant’s motion for summary judgment on the basis that their tort claim against defendant was barred by the exclusive remedy provisions of the Workers’ Compensation Act and in failing to find the assault upon Mrs. Maxwell was personal and therefore excluded from workers’ compensation coverage. OCGA § 34-9-11 provides, in pertinent part, that “[t]he rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee, ... at common law or otherwise, on account of . . . injury . . . .” Injury is defined in OCGA § 34-9-1 (4) as “injury by accident arising out of and in the course of the employment...” but the definition does “not include injury caused by the willful act of a third person directed against an employee for reasons personal to such employee . . . .” “Whether the [attack] resulting in [Mrs. Maxwell’s] injuries occurred for ‘reasons personal to’ her, thereby excluding those injuries from workers’ compensation coverage, depends upon whether the injuries arose out of and in the course of [Mrs. Maxwell’s] employment with [defendant]. Murphy v. ARA Svcs., 164 Ga. App. 859, 861 (298 SE2d 528) (1982).” City of Atlanta v. Shaw, 179 Ga. App. 148, 149 (345 SE2d 642) (1986). Plaintiffs concede that Mrs. Maxwell’s injuries arose “in the course of her employment.” However, as they correctly assert, “an injury which does not ‘arise out of’ the employment is not covered by the Act, even where the injury may have occurred ‘in the course of’ the employment. ‘Injury’ as defined in OCGA § 34-9-1 (4) ‘means only injury by accident arising out of and in the course of employment.’ (Emphasis supplied.) It has long been established that both ‘(a)rising out of and in the course of the employment must occur before the work(ers’) compensation act can apply to an injury to an employee. (Cit.)’ Lumbermen’s Mut. Cas. Co. v. Babb, 67 Ga. App. 161, 164 (19 SE2d 550) (1942).” Garrett v. K-Mart Corp., 197 Ga. App. 374, 375 (398 SE2d 302) (1990). See also City of Atlanta, supra.

“ ‘The words “arising out of” mean that there must be some causal connection between the conditions under which the employee worked and the injury which he received. The causative danger must be incidental to the character of the employment, and not independent of the relation of master and servant. The accident must be one resulting from a risk reasonably incident to the employment. And a risk is incident to the employment when it belongs to, or is connected with, what a workman has to do in fulfilling his contract of service. . . .’ ‘It “arises out of” the employment, when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises “out of” the employment.’ [Cit.] The injuries, however, need not arise from something peculiar to the employment but the injury is compensable if after the event it is apparent to the rational mind that there is a causal connection between the conditions under which the employment was performed and the resulting injury. [Cits.]” Employers Ins. Co. of Ala. v. Wright, 108 Ga. App. 380, 381-382 (133 SE2d 39) (1963) (in which this court held that an employee’s injuries from being raped on the employer’s premises was an injury covered by the Workers’ Compensation Act).

Applying this test to the facts at hand, we are constrained to agree with the trial court that plaintiff Rita Maxwell’s injuries arose out of her employment with defendant. Several times a week, Mrs. Maxwell was forced to walk alone to her car during the early morning hours. The hospital had only one security guard on duty per shift and Mrs. Maxwell had been instructed not to request an escort to her car. Mrs. Maxwell was the only employee out of approximately 100 on duty at the hospital whose shift ended at 2:30 a.m. The parking lot customarily contained over 100 cars, providing ample hiding space, and some of the lights in the parking lot were usually not functioning. Although the days Mrs. Maxwell worked varied from week to week, her schedule was posted six weeks in advance in a place where other employees could easily see it. In addition to contact with fellow employees, her job as a patient representative required her to come in contact with the public in an indiscriminate manner. Moreover, although plaintiffs point to the fact that Mrs. Maxwell’s assailant was familiar with the way she dressed and the jewelry she wore to work in arguing that the attack against her was personal, these facts merely highlight that the assailant’s knowledge of Mrs. Maxwell was somehow connected with the workplace.

Decided October 23, 1991

Reconsideration denied November 27, 1991

Mitchell, Coppedge, Wester, Bisson & Miller, Warren N. Coppedge, Jr., E. Neil Wester III, for appellants.

Shaw, Maddox, Graham, Monk & Boling, C. Wade Monk, Virginia B. Harman, Watson & Dana, Dennis D. Watson, for appellee.

“Under these circumstances, we think the conditions of [Mrs. Maxwell’s] employment did not merely provide the time and place for the assault upon her, but that the same increased the risk of the attack, and subjected her to a danger peculiar to the employment. We therefore hold that the assault[, robbery and rape] upon the claimant arose out of her employment within the purview of the Workers’] Compensation Act.” Employers Ins., supra at 383. “It follows that [plaintiffs’] remedy, if any, lies exclusively under the provisions of the Act and [plaintiffs] may not maintain a common law tort action against [the] employer. [Cits.] The trial court did not err in granting summary judgment for the defendant.” Helton v. Interstate Brands Corp., 155 Ga. App. 607, 609 (271 SE2d 739) (1980). See also General Fire &c. Co. v. Bellflower, 123 Ga. App. 864 (4) (182 SE2d 678) (1971); cf. Murphy v. ARA Svcs., 164 Ga. App. 859 (298 SE2d 528) (1982); Wood v. Aetna Cas. &c. Co., 116 Ga. App. 284 (3) (157 SE2d 60) (1967).

Judgment affirmed.

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


text:
    A91A1150.
    PULLIAM v. NICHOLS.
    (413 SE2d 215)
   Cooper, Judge.

This is an appeal from the trial court’s orders denying opening of default and entering default judgment against appellant.

The parties have stipulated to the following facts: Appellee filed suit against appellant on June 15, 1990, for sums due under a construction contract. The complaint and summons were personally served on appellant at his business address on June 27, 1990. Appellant alleges that he gave instructions to his office manager to promptly transmit the service copy of the complaint and summons to his attorney for response. Prior to the filing of the suit by appellee, counsel for both parties had been involved in negotiations to resolve the dispute. No courtesy copy of the complaint or notice of the suit was given to appellant’s counsel until after the action had gone into default. Although appellant’s office manager acknowledges that she was allegedly instructed by appellant to deliver the complaint to appellant’s counsel, no copy of the complaint was received by appellant’s counsel. Appellant did not attempt to contact his counsel about the action from June 27, 1990, until after September 10, 1990. Appellant asserts that he made no inquiry because he relied upon the transmission of the complaint to his attorney by his office manager. Actual notice of the suit was received by appellant’s counsel by verbal notice from appellee’s counsel on September 10, 1990. On that same day, appellant’s counsel informed appellant, through his office manager, of the default and requested instructions regarding the filing of a motion to open default. One week later, appellant told his attorney that he would have instructions for him by September 22, 1990. On October 5, 1990, a motion to open default was filed on behalf of appellant. That motion was denied, and default judgment was entered on December 5, 1990. The trial court found that appellant’s failure to timely forward the complaint and summons to his attorney due to a mix-up in appellant’s office does not constitute excusable neglect, providential cause or a proper case for the opening of default under OCGA § 9-11-55 (b).

Appellant raises three related enumerations of error, contending that the trial court erred in denying appellant’s motion to open default judgment and in entering default judgment against appellant. “Pursuant to OCGA § 9-11-55 (b), a prejudgment default may ‘be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. (Cit.)’ [Cit.]” Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828, 834 (4) (360 SE2d 280) (1987). “Opening a default is a matter resting within the sound discretion of the trial court which will not be disturbed absent an abuse of discretion. [Cit.]” Id. The trial judge did not abuse his discretion in the instant case. Based on the facts as stipulated by the parties, we cannot conclude that either providential cause or excusable neglect was the reason behind the default of appellant. For two- and-one-half months, appellant neither followed up with his office manager nor with his attorney to determine the status of the case. “ ‘The press of business ... is no ground to open a default.’ [Cit.]” U. S. Xpress v. W. Timothy Askew & Co., 194 Ga. App. 730 (391 SE2d 707) (1990). Further, in the answer submitted by appellant, which was not verified, appellant provided no facts or explanation supporting his defenses, but merely asserted that appellee failed to state a claim and that appellee was barred from recovery by the doctrine of equitable estoppel. Appellant submitted no other sworn statement setting forth his meritorious defense. Thus, in any event, the trial court was without discretion to grant appellant’s motion to open default. See C. W. Matthews Contracting Co. v. Walker, 197 Ga. App. 345 (1) (398 SE2d 297) (1990).

Decided October 29, 1991

Reconsideration denied November 27, 1991

John P. Howell, for appellant.

Samuel D. Ozburn, for appellee.

Appellee filed a motion for damages for a frivolous appeal pursuant to OCGA § 5-6-6. “Our review of the record and the arguments of counsel has persuaded us that although none of appellant’s enumerations of error was meritorious, neither were they so specious as to warrant the conclusion that this appeal was taken for the purpose of delay only. Appellee’s motion is, therefore, denied.” Ale-8-One of America v. Graphicolor Svcs., 166 Ga. App. 506, 509 (10) (305 SE2d 14) (1983).

Judgment affirmed.

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


text:
    A91A1257.
    O’BERRY v. COOPER et al.
    (413 SE2d 736)
   Pope, Judge.

Defendant Edward F. O’Berry, Jr., retired in 1987 after being employed by Electrolux Corporation for over 20 years. In 1984 he moved from Oregon to North Carolina and was unemployed for several months while he waited for a position to come available with the corporation at his new place of residence. During this period he did not receive compensation from the corporation. In June of 1984, however, he received a check for $39,000 from one of the corporation’s several pension accounts. When defendant retired he made a request for distribution of benefits from his retirement account. The corporation notified him that his account amounted to over $106,000 and he requested payment of the full amount minus tax withholdings. Accordingly, the corporation sent him a check dated October 29, 1987 for $92,430.97. In April 1988 auditors of the corporation’s pension fund discovered defendant had been overpaid by $39,000 because the amount paid to him in 1984 had not been deducted from his account when his retirement benefits were paid. The corporation notified defendant and requested reimbursement, but defendant did not respond.

Plaintiffs, the administrators of the Electrolux Corporation retirement plan, filed suit against defendant for money had and received and later amended the complaint to add a claim for fraud. The case was tried and judgment was entered on the jury verdict awarding plaintiffs $19,500. Defendant appeals.

1. Defendant first argues the trial court erred in denying his motion in limine regarding evidence that he omitted the $39,000 payment made to him in 1984 from his federal income tax return. Defendant argues such evidence is irrelevant to the case and merely served to prejudice him by implying he committed an illegal act. In defense of plaintiffs’ fraud claim, defendant testified he did not know the payment was made from his pension account and that he believed the payment was possibly income. Thus, evidence that defendant did not declare the payment as income on his tax return was relevant to defendant’s knowledge of the source or purpose of the payment.

2. Next, defendant argues the trial court erred in denying his motion to dismiss the amendment to the complaint which added a claim for fraud on the ground the amendment failed to state a claim for fraud. The amended complaint alleged defendant had a duty to inform plaintiffs of the overpayment he received but, instead, intentionally concealed the fact to plaintiffs’ detriment. Thus, contrary to defendant’s argument, the complaint states a claim pursuant to OCGA § 51-6-2 (a), which states that mere concealment of a material fact will not support an action for fraud “unless done in such a manner as to deceive and mislead . . . .”

Neither did the trial court err in denying defendant’s motion for directed verdict at the conclusion of all evidence at the trial. In Graham v. Hogan, 185 Ga. App. 842 (366 SE2d 219) (1988), in which a law firm sued its former clients, both for money had and received and for fraud, for the clients’ “failure to apprise” the firm that they had been overpaid by a settlement check, this court acknowledged that defendant’s failure to notify the plaintiff of its own mistake is not a material misrepresentation. Nevertheless, the court went on to hold “mere concealment will support an action for fraud if done in such a manner as to deceive and mislead. OCGA § 51-6-2 (a). Also, though it not be actual fraud, constructive fraud may arise out of any act of omission or commission, contrary to legal or equitable duty, trust or confidence justly reposed, which is contrary to good conscience and operates to the injury of another; and constructive fraud may moreover be consistent with innocence and not smacking with moral guilt. OCGA § 23-2-51. The particular circumstances of a case may give rise to a duty to disclose, violation of which might be fraud (§ 23-2-53), as might be any unfair way used to cheat another (§ 23-2-56) and being in itself subtle, fraud may be proved by slight circumstances. OCGA § 23-2-57.” Id. at 844-845 (2). Defendant argues he breached no duty to plaintiffs because he was no longer an employee of Electrolux Corporation at the time the overpayment was sent to him and therefore owed no duty to plaintiffs. We cannot say as a matter of law, however, that a duty to disclose did not arise out of the particular circumstances of the case or that the jury could not find a violation of the duty to disclose in this case. Moreover, contrary to defendant’s argument, the court in Graham concluded that a plaintiff may recover for fraud even if the mistaken overpayment was made as a result of the plaintiff’s own negligence if the circumstances give rise to a duty of the defendant to disclose the mistake. Id.

Decided October 24, 1991

Reconsideration denied November 27, 1991.

Barry L. Zimmerman, for appellant.

3. Defendant also objects to admission in evidence of two of plaintiffs’ exhibits on the ground that plaintiffs failed to lay a proper foundation for them under the business records exception to the hearsay rule. Even if no proper foundation was laid, the admission of Plaintiffs’ Exhibit 2 was not reversible error since it is a form indicating only that defendant “quit” his job in March of 1984. Although defendant testified he did not quit his job but only requested a transfer, he admitted he was unemployed for several months after his move to North Carolina until the company offered him a position there and that he applied for unemployment compensation. Thus, the form indicating defendant “quit” was, in essence, consistent with defendant’s own testimony that he was not employed for a period of several months and was no more prejudicial to defendant’s assertions concerning his understanding of the purpose of the $39,000 check than his own testimony. Even if plaintiffs failed to lay a proper foundation for Exhibit 6 its admission was in no way reversible error because it merely showed that defendant had enrolled in the pension plan in 1979 and was “appt mgr on 9/19/84.” Defendant admitted he assumed a managerial position with the corporation in North Carolina in September of 1984.

4. We have examined the entire charge to the jury and conclude that the trial judge correctly and adequately instructed the jury on the law of money had and received and the law of actual and constructive fraud. Thus, we find no error in the trial court’s failure to charge those five of the instructions requested by defendant which defendant raises as error on appeal.

Judgment affirmed.

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

Powell, Goldstein, Frazer & Murphy, Robert F. Dallas, for appellees.


author: Carley, Presiding Judge.

text:
    A91A1049, A91A1050.
    MITCHELL v. THE STATE (two cases).
    (413 SE2d 517)
   Carley, Presiding Judge.

In Case No. A91A1049, appellant was charged with six counts of burglary and, in Case No. A91A1050, he was charged with one count of burglary and one count of criminal attempt to commit burglary. On the same day, appellant pled guilty in both cases and was sentenced in each case as a recidivist “under OCGA § 17-10-7.” He appeals from the judgments of conviction and sentences entered by the trial court on the guilty pleas, enumerating as error only his recidivist sentences “under OCGA § 17-10-7.”

1. Appellant urges that it was error to sentence him as a recidivist pursuant to OCGA § 17-10-7 because he was not indicted as a recidivist.

“In Riggins v. Stynch[c]ombe, 231 Ga. 589, 592-593 (203 SE2d 208) [(1974)], the Supreme Court concluded that under the two-step sentencing procedure then in effect, ‘one must be indicted as a recidivist in order to impose recidivist punishment. . . .’ [Cits.] However, in State v. Hendrixson, 251 Ga. 853 (310 SE2d 526) [(1984)], the Supreme Court, after noting ‘Riggins arose during the short life of a two-step felony sentencing procedure,’ concluded that ‘(b)ecause Rig-gins stands for the proposition that it is error to disclose to the jury prior convictions before a determination of guilt, (cit.) the only purpose for their inclusion in the indictment is to give the accused unmistakable advance warning that the prior convictions will be used against him at sentencing.’ [Cit.] The court then stressed that OCGA § 17-10-2 (a), since the 1974 Act, contains an express curative proviso ‘different from inclusion of prior offenses within an indictment,’ which broadly provides ‘that only such evidence in aggravation as the (S)tate has made known to the defendant prior to his trial shall be admissible’ at the presentencing hearing. [Cit.] Thus, Hendrixson, supra, . . . [held] that the important requirement was that the defendant be given an ‘unmistakable advance warning that the prior convictions will be used against him at sentencing’ ([cits.]), so that he will have ‘enough time to rebut or explain any conviction record’ ([cit.]). As ‘the only purpose for inclusion of prior offenses in an indictment’ is to give this warning ([cit.]), it is readily apparent that such affirmative notice can be given by other acceptable means, and there no longer exists an absolute necessity to allege prior offenses in an indictment. [Cit.] The validity of this conclusion is supported by the fact that in cases such as this a ‘defendant had no right to a jury determination of (the recidivist) issue,’ because ‘recidivism is an issue only in the sentencing phase of a trial.’ [Cits.]” (Emphasis in original.) State v. Freeman, 198 Ga. App. 553, 556 (3) (402 SE2d 529) (1991).

Thus, OCGA § 17-10-7, “is ‘merely a direction as to the imposition of punishment under specified aggravated circumstances’ and does not require an allegation of a prior offense in the indictment. [Cit.]” Anderson v. State, 176 Ga. App. 255, 256 (335 SE2d 487) (1985). Compare Darty v. State, 188 Ga. App. 447, 448 (373 SE2d 389) (1988) (holding that the crime of felony shoplifting under OCGA § 16-8-14 (b) (1) (C) requires an allegation of recidivism because it “does not simply give direction to the judge for sentencing purposes but changes the very nature of the offense from a misdemeanor to a felony.”) Favors v. State, 182 Ga. App. 179, 180 (2) (355 SE2d 109) (1987) (“Unlike the recidivist statutes, OCGA § 16-11-131 (b) requires that the previous felony conviction be proved to the jury as one of the elements of the crime. [Cits.]” (Emphasis supplied.)) It follows that the lack of any allegation as to appellant’s recidivism in the indictments in the instant cases would be no impediment to the imposition of recidivist sentences pursuant to OCGA § 17-10-7. State v. Freeman, supra; Anderson v. State, supra. See also Rhodes v. State, 200 Ga. App. 193, 199 (7) (407 SE2d 442) (1991).

2. Appellant urges that, even if it was proper to sentence him as a recidivist, it would not be proper to sentence him as a fourth offender under OCGA § 17-10-7 (b).

Appellant could be sentenced as a fourth offender pursuant to OCGA § 17-10-7 (b) only if, pursuant to OCGA § 17-10-2 (a), the State had given him pre-trial notice of the three prior felonies upon which it intended to rely. State v. Hendrixson, supra; State v. Freeman, supra; Anderson v. State, supra. Contrary to the State’s contention, neither of appellant’s instant convictions can serve as the partial predicate for the imposition of a fourth offender recidivist sentence under OCGA § 17-10-7 (b) in the other. At the time that the State was required to give its pre-trial notice so as to comply with OCGA § 17-10-2 (a), appellant’s two instant convictions were neither final nor convictions. “[T]he offenses charged in the indictment[s] for which [appellant] was [to be tried] could [not] be considered in determining his status as a recidivist.” McCoy v. State, 168 Ga. App. 598-599 (310 SE2d 2) (1983) (On Motion For Rehearing). “The conviction must be final before it can be included in [the pre-trial notice given by the State pursuant to OCGA § 17-10-2 (a)].” Croker v. Smith, 225 Ga. 529, 532 (4) (169 SE2d 787) (1969).

The record shows that the State complied with OCGA § 17-10-2 (a) only insofar as it gave pre-trial notice of its reliance upon two of appellant’s prior convictions for felonies. Only one of those prior convictions was for burglary. Accordingly, appellant was, for sentencing purposes, more than a mere two-time burglary offender under the specific recidivist provisions of OCGA § 16-7-1 (b). He was a three-time felony offender under the general recidivist provisions of OCGA § 17-10-7 (a). See Green v. State, 154 Ga. App. 295, 298 (3) (267 SE2d 898) (1980). Accordingly, the trial court properly sentenced appellant as a recidivist “under OCGA § 17-10-7,” and erred only to the extent that it did not specify that the sentences were being imposed pursuant to subsection (a) rather than subsection (b) of that statute. Therefore, “[t]o avoid further litigation on this point and on [appellant’s] future eligibility for parole, we affirm [these] case[s] with direction to the trial court to amend the order [s] sentencing [appellant] to show that ‘[Appellant] was not found to be a fourth offender under [OCGA § 17-10-7 (b)].’ ” Hinton v. State, 138 Ga. App. 702, 704 (5) (227 SE2d 474) (1976).

Decided November 27, 1991.

James A. Yancey, Jr., for appellant.

W. Glenn Thomas, Jr., District Attorney, Charles K. Higgins, Assistant District Attorney, for appellee.

Judgments affirmed with direction.

Beasley, J., and Judge Arnold Shulman concur.


text:
    A91A1158.
    CARVER v. THE STATE.
    (413 SE2d 265)
   Cooper, Judge.

In September 1986, appellant was convicted of the crime of making terroristic threats and was sentenced to 30 days in prison plus three years and eleven months on probation. Appellant’s conviction arose out of a public demonstration by appellant, a leader of the Ku Klux Klan, and other members of that organization in Gainesville, Georgia, when they were all dressed in Klan robes and Klan insignia. Appellant appealed his conviction, which was affirmed. See Carver v. State, 185 Ga. App. 436 (364 SE2d 877) (1987), aff’d, 258 Ga. 385 (369 SE2d 471) (1988). As conditions to his probation, the trial court prohibited appellant from demonstrating in public with the Ku Klux Klan and from wearing Klan robes or Klan insignia. Appellant, who did not raise the conditions of probation in his initial appeal, filed a motion in August 1990 with the trial court to modify the conditions of his probation. As to the prohibitions stated above with respect to participation in Klan activities, the trial court denied appellant’s motion. Appellant appeals that denial, raising as his sole enumeration of error the trial court’s lack of authority to prohibit his Klan activities. Appellant contends that the prohibitions violate his freedoms of speech, association and religion and are therefore invalid.

Decided November 27, 1991.

Daniel B. Carver, Sr., pro se.

C. Andrew Fuller, District Attorney, Leonard C. Parks, Jr., Assistant District Attorney, for appellee.

Approximately four years intervened between appellant’s conviction and his motion to modify the conditions of his probation. Appellant invoked the appellate process and appealed his conviction in 1987, yet raised no complaint about his probation. In Brainard v. State, 246 Ga. 586 (272 SE2d 683) (1980), the defendant was placed on probation for five years and fined after pleading guilty to a drug violation. He appealed the conviction but did not appeal the sentence. One year after the defendant was sentenced, his probation was revoked. On appeal from the state’s action to recover prosecution costs, the defendant alleged that the original fine imposed on him was excessive. The Supreme Court refused to consider the defendant’s late attack on his sentence and stated: “ [defendant was apparently satisfied with his sentence at the time it was entered as he did not appeal from it as was his right. . . . This being so, he will not be heard to complain at this late date that the fine was excessive.” Id. The trial court relied on Brainard and determined that appellant had failed to make a timely request to modify his probation. Likewise, we find that appellant, who failed to include an appeal from his sentence and probation at the time he appealed his conviction, cannot complain about the terms of his probation at this late date. Appellant, having once invoked the appellate process, cannot now seek to raise issues which should have been raised in that appeal. The trial court’s decision to deny modification of the terms of appellant’s probation was not in error.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A91A0842.
    SOUTHERN GENERAL INSURANCE COMPANY v. BUCK et al.
    (413 SE2d 481)
   Beasley, Judge.

Plaintiff/appellant Southern General Insurance Company appeals from an order of the trial court granting summary judgment to the defendant/appellees and denying its cross-motion for summary judgment in this declaratory judgment action.

A collision occurred between an automobile driven by appellee Buck and a tractor-trailer rig operated by appellee Hall for the business purpose of hauling logs. The tractor portion of the rig was owned by appellee Smith and the trailer portion was owned by appellee Cowart. Both the Smith tractor and the Cowart trailer were insured under separate commercial automobile policies, both of which had coincidentally been issued by Southern General.

Buck sued for damages allegedly resulting from the collision, naming Hall, Smith and Cowart as party defendants. Southern General provided a defense on behalf of Hall, Smith and Cowart pursuant to reservation of rights letters issued to its insureds.

Southern General also filed the complaint here subject for declaratory relief against Hall, Smith, Cowart, and Buck, it sought a stay in the underlying tort action as well as a judicial determination that it is not obligated to defend any party or pay any judgment obtained in that action because of identical exclusions in the policies issued to both Smith and Cowart. Buck’s uninsured motorist carrier was joined as a party defendant. The request for a stay was denied and the parties filed their cross-motions for summary judgment.

1. In their collective motions, the appellees asserted that Southern General was barred from seeking declaratory relief because it waited 14 months after the filing of the main claim to seek a determination as to coverage. In an oral ruling during the hearing on the cross-motions for summary judgment, the trial court rejected that contention, finding that there was no waiver of Southern General’s right to question coverage. Appellees contend the trial court’s ruling was erroneous. Southern General responds that the ruling may not be challenged in the absence of a cross-appeal. “The general rule is that an appellee must file a cross-appeal to preserve enumerations of error concerning adverse rulings. OCGA § 5-6-38; [Cit.] However, a ruling that becomes material to an enumeration of error urged by an appellant may be considered by the appellate court without the necessity of a cross-appeal.” Georgia &c. Plastic Surgeons v. Anderson, 257 Ga. 710, 711 (1) (363 SE2d 140) (1987). Consideration of the waiver issue is a necessary threshold inquiry to the disposition of the merits of Southern General’s claims. For that reason we will review the ruling that Southern General’s delay in filing the declaratory judgment action did not operate as a waiver of the right to question its obligation for coverage.

2. Richmond v. Ga. Farm Bureau Mut. Ins. Co., 140 Ga. App. 215 (231 SE2d 245) (1976), established guidelines with respect to whether a declaratory judgment action by an insurer is brought in a timely manner: “Upon learning of facts reasonably putting it on notice that there may be grounds for noncoverage and where the insured refuses to consent to a defense under a reservation of rights, the insurer must thereupon (a) give the insured proper unilateral notice of its reservation of rights, (b) take necessary steps to prevent the main case from going into default or to prevent the insured from being otherwise prejudiced, and (c) seek immediate declaratory relief including a stay of the main case pending final resolution of the declaratory judgment action.” Id. at 219. The rationale articulated is that this course of action is fair to both the insured and the insurer. It fully informs the insured, prevents any default from being obtained in the litigation, and protects the rights of both insured and insurer pending the outcome of the declaratory judgment action. Id. at 220.

The Supreme Court further explained that “[t]he rule enunciated in Richmond is based on principles of fairness, and, in determining whether an insurer has met the requirements thereof, the crucial inquiry is whether the rights of the insured have been adequately protected.” Kelly v. Lloyd’s of London, 255 Ga. 291, 293 (2) (336 SE2d 772) (1985). Where no prejudice was demonstrated by the insured resulting from the time of filing of the action, and 14 days after answer was deemed a reasonable time for seeking declaratory judgment, the Court held that the filing was timely so there was no waiver of the right to seek relief. Id. at 294. That “the rule is based on fairness” was reiterated in Caldwell v. State Farm Fire &c. Ins. Co., 192 Ga. App. 419 (385 SE2d 97) (1989). In applying the rule, the court considered that the insureds had been put on notice that insurer questioned coverage, that insurer “moved promptly” to file for declaratory judgment, and that insured was already actively represented in the tort action by his own attorney.

Southern General undisputedly complied with the first two requirements under Richmond. It defended the suit with its own counsel and participated in discovery. However, it did not bring the declaratory judgment action until nearly 14 months following the filing of the underlying tort claim. It learned of the suit after it had been served on those defendants. While we disapprove of such a lengthy delay and recognize that the immediacy requirement of Richmond has not been met, we cannot, in the absence of a showing of prejudice by the appellees as movants on summary judgment, conclude as a matter of law that Southern General waived its right to seek a judicial determination of its obligation for coverage under the policies of insurance. The trial court’s rejection of waiver is affirmed.

3. Southern General contends that the trial court erred in denying summary judgment and granting summary judgment to the appellees with respect to whether the policies provided coverage for Buck’s claim.

The two commercial automobile policies contain similar provisions. Under Part A (the insuring agreements and exclusions), both policies cover bodily injury and property damage liability caused by the insured’s vehicle. The insured vehicle in both policies is listed on the declarations page as a “tractor.” An endorsement to each policy defines coverage of semi-trailers (or trailers) where the insured vehicle is a tractor as follows: “[T]he following description of an insured semi-trailer applies: Any owned semi-trailer while singularly attached to the insured tractor.” The rig, consisting of Smith’s tractor and Cowart’s trailer, is not covered under Smith’s endorsement because it is not “owned” by the named insured, Smith. Nor is it covered under Cowart’s policy because Cowart did not own both component parts.

The exclusions relied upon by Southern General provide: “This policy does not apply: under coverages A and B [bodily injury and property damage liability], while the [tractor] is used for the towing of any trailer owned or hired by the insured and not covered by like insurance in the company; or while any trailer covered by this policy is used with any [vehicle] owned or hired by the insured and not covered by like insurance in the company.” Thus, coverage for the rig is excluded under the foregoing standard exclusion for the reason that the tractor was towing a trailer which was “not covered by like insurance in the company.” It is of no import whether Smith had “hired” the trailer from Cowart, as asserted by appellee, since the rig is clearly excluded from coverage unless both component parts are covered by “like” insurance, i.e., by the same insured. The business purpose endorsement covered each unit only when it was used with another unit owned or hired by the insured.

The policies are unambiguous. They exclude coverage for non-owned trailers attached to an insured tractor and exclude coverage of the tractor unless it is attached to a trailer owned or hired by the named insured and like-insured. That is, both policies exclude coverage for the entire vehicle if the covered tractor was used to tow a trailer not owned or hired by the tractor’s insured, and not covered by like insurance in the company. Both policies exclude coverage of a trailer owned by an insured which is being pulled by a tractor not owned by the trailer’s insured. Accord S & T Timber v. Southern Gen. Ins. Co., 198 Ga. App. 18 (400 SE2d 379) (1990), construing identical policy provisions. See also Southern Trust Ins. Co. v. Ga. Farm Bureau Mut. Ins. Co., 194 Ga. App. 751 (4) (391 SE2d 793) (1990). It was error to deny summary judgment to Southern General and to grant summary judgment to the appellees with respect to coverage for the collision with Buck’s vehicle.

Judgment affirmed in part and reversed in part.

Carley, P. J., and Judge Arnold Shulman concur.

Decided November 12, 1991

Reconsideration denied December 2, 1991

Brennan & Wasden, Joseph P. Brennan, Wiley A. Wasden III, Mary R. Piette, Marvin W. McGahee, for appellant.

Ronald W. Hallman, Sutton & Slocomb, Berrien L. Sutton, William E. Callaway, Jr., Beckmann & Pinson, Joseph H. Barrow, for appellees.

       In Kelly v. Lloyd’s of London, supra, it was stated that the insurer’s obligation to file a declaratory judgment action begins to run following the answer, not the filing of the suit but the record does not show when the answer in the underlying tort action was filed.


author: Andrews, Judge.

text:
    A91A1385.
    AMERICAN DEMOLITION, INC. v. HAPEVILLE HOTEL LIMITED PARTNERSHIP et al.
    (413 SE2d 749)
   Andrews, Judge.

After submitting a successful bid proposal, American Demolition contracted with Hapeville Hotel Limited Partnership (“Hapeville”) to demolish the old Atlanta Airport Hilton Hotel owned by appellee Hilton Hotel, to remove all asbestos and underground foundations, to backfill all holes and to recompact the soil. The contract between the parties was based on the American Institute of Architects’ form contract, although many provisions of the form document were deleted and a 19 page addendum of “supplementary general conditions” was included.

The contract defined the work to be performed, the demolition of the project site and asbestos abatement, as follows: “[t]he work comprises the completed construction required by the Contract Documents and includes all labor necessary to produce such construction, and all materials and equipment incorporated or to be incorporated in such construction.” The contract further provided that the amount to be paid was a stipulated sum “without extra compensation” and that “[t]he intent of the Contract Documents is to include all of the work for the Stipulated Contract Sum and within the Contract Time . . . any work which is obviously necessary to complete the work within the limits established by the Drawings and Specifications, shall be considered as part of the Contract and shall be executed by the Contractor in the same manner and with the same character of material as other portions of the Contract without extra compensation.” (Emphasis supplied.) Although the original contract form contained a “concealed conditions” provision, which provided for an equitable adjustment of the contract price in the event that unusual conditions were encountered, the parties struck this provision from their contract and no similar clause was substituted. The contract did include a “site inspection” clause which provided the “contractor hereby acknowledges that it has visited the site, examined all conditions affecting the Work, is fully familiar with all of the conditions thereon and affecting the same. . . .” Finally, the contract contained two “merger” clauses, one of which stated: “[t]he Contract documents form the Contract for Construction. This Contract represents the entire and integrated agreement between the parties hereto and supersedes all prior negotiations, representations, or agreements, either written or oral.”

American Demolition encountered unforeseen .problems during the demolition of one of the buildings. The problem stemmed from the fact that the building’s foundation was more extensive than American Demolition had anticipated and that the subsurface soil was wet due to a drainage problem. American Demolition did not complete the contract requirements, Hapeville did not pay for some of the work and American Demolition filed a complaint to recover payment for both the contract balance and additional costs incurred during the performance of the contract.

The complaint was in five counts — the first two counts were for breach of contract, the third count sought damages for fraud, count four set forth claims for extra-contractual and quantum meruit damages and count five was for the foreclosure of a mechanic’s lien. The trial court granted summary judgment against American Demolition on counts three and four and American Demolition appeals.

1. In its first three enumerations of error, American Demolition claims that the trial court erred in granting summary judgment as to its claims of fraudulent concealment. That count alleged that defendants fraudulently misrepresented and concealed the site conditions, particularly the wet condition of the subsurface soils, the extensive nature of the foundation system, and the existence of the drainage problem. American Demolition’s claim is based in large part on the nondisclosure of two engineering reports which had been performed for appellees, which revealed these problems. American Demolition also claimed that during one pre-contract site visit, a representative had inquired generally of other relevant facts and neither the existence of the reports nor the unusual subsurface conditions were revealed. According to two affidavits which American Demolition filed in opposition to the motion for summary judgment, the subsurface conditions were not apparent during the investigations they made of the site prior to contracting.

The trial court’s grant of summary judgment on the fraudulent concealment claim was based on several grounds. First, the trial court held that because American Demolition elected not to rescind the contract, the merger clause of that contract barred the fraud claim. We agree.

In an action for fraud, “[i]f the defrauded party has not rescinded but has elected to affirm the contract, he is relegated to a recovery in contract and the merger clause will prevent his recovery. This result obtains because where the allegedly defrauded party affirms a contract which contains a merger or disclaimer provision and retains the benefits, he is estopped from asserting that he relied upon the other party’s misrepresentation and his action for fraud must fail.” (Citations and punctuation omitted.) Mitchell v. Head, 195 Ga. App. 427, 428 (394 SE2d 114) (1990); see also Carpenter v. Curtis, 196 Ga. App. 234 (395 SE2d 653) (1990) (physical precedent); Roller-Ice v. Skating Clubs of Ga., 192 Ga. App. 140, 142 (384 SE2d 235) (1989) (physical precedent). There is no claim that American Demolition made any effort to rescind the contract and having made its election to sue under the contract, it is bound by the merger clause.

In an effort to bypass this rule, American Demolition citing Sires v. Luke, 544 FSupp. 1155 (S.D. Ga. 1982) and SCM Corp. v. Thermo Structural Prods., 153 Ga. App. 372 (265 SE2d 598) (1980), argues that it was prevented from exercising its own independent judgment in the making of the contract and therefore is exempt from the rule stated above. American Demolition claims that it fits within this exception since the alleged fraud concerned intrinsic defects in the article forming the subject matter of the contract and that appellees had a duty of disclosure because of the nature of the parties’ relationship.

There is a multitude of problems with American Demolition’s argument, though we will limit our discussion to the most apparent flaw. There is no evidence to suggest that this transaction was anything other than an arm’s length transaction between two professionals and there is no evidence that any special or confidential relationship existed to give rise to a duty to disclose. See generally Kienel v. Lanier, 190 Ga. App. 201 (2) (378 SE2d 359) (1989); OCGA § 23-2-53; compare Pinkerton & Laws Co. v. Roadway Express, 650 FSupp. 1138 (N.D. Ga. 1986). Here, there was no duty to disclose, American Demolition has failed to show that it could not exercise its “independent judgment” in forming the contract and American Demolition’s attempts to circumvent the contract’s merger clause fail. See generally OCGA §§ 51-6-2 (a); 13-5-5; Charter Med. Mgmt. Co. v. Ware Manor, 159 Ga. App. 378, 384 (5) (283 SE2d 330) (1981); Toys ‘R’ Us v. Atlanta Economic Dev. Corp., 195 Ga. App. 195, 198 (393 SE2d 44) (1990) .

Because of our conclusion that no issue of fact existed and that summary judgment was proper as to the fraudulent concealment claim because of the existence of the merger clause, we need not address the enumeration of error regarding the trial court’s grant of summary judgment on the basis that American Demolition failed to exercise due diligence.

2. In its fourth and fifth enumerations of error, American Demolition claims that the trial court erred in granting summary judgment on count three which alleged that because of unanticipated subsurface conditions, American was required to perform work outside the scope of the contract and was entitled to additional compensation and that it is entitled to quantum meruit recovery under OCGA § 9-2-7.

Decided November 14, 1991

Reconsideration denied December 2, 1991

Peterson, Dillard, Young, Self & Asselin, James B. Vance, Thomas 0. Marshall, for appellant.

Porter & Doster, J. Alexander Porter, Sidney R. Barrett, Jr., McGinn, Webb & Warner, Douglas B. Warner, for appellees.

In order to determine whether American can recover additional money for the unforeseen performance costs involved in the contract, it is necessary to determine from the contract itself who bore the risk of unknown obstacles. The contract here contained no changed conditions clause, unequivocally limited the contract payment to a sum certain, and contained an inspection clause. It is clear from these provisions that the contract imposed the risk of uncertainty of subsurface conditions on American Demolition. Jerome Bradford Constr. Co. v. Pinkerton & Laws Co., 174 Ga. App. 854 (332 SE2d 26) (1985); Pinkerton, supra. “Parties laboring under no disabilities may make contracts on their own terms, and in the absence of fraud or mistake or terms that are illegal or contrary to public policy, they must abide by the contract. The fact that it is unwise or disadvantageous to one party furnishes no reason for disregarding it.” (Citations and punctuation omitted.) Jerome, supra at 855. Because the contract placed the risk of extra expense on it, American Demolition is not entitled to recover additional compensation just because the work required to be performed was more expensive than it had anticipated.

The trial court also properly dismissed the claim for quantum meruit damages. “There can be no recovery on quantum meruit when the action is based on an express contract.” Stowers v. Hall, 159 Ga. App. 501 (283 SE2d 714) (1981).

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


author: McMurray, Presiding Judge. Andrews, Judge,

text:
    A91A1583.
    CLABO et al. v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY.
    (413 SE2d 476)
   McMurray, Presiding Judge.

This appeal involves insurance issues arising from a motor vehicle collision. A vehicle driven by Lane and owned by Cain Tool & Equipment, Inc., collided with a vehicle driven by William Clabo and also occupied by his ex-wife, Leslie Clabo, owner of the vehicle and named insured under a policy of insurance on this vehicle issued by Tennessee Farmers Mutual Insurance Company (hereafter “Tennessee Mutual”) in Tennessee. Leslie Clabo was injured in the collision and filed this negligence action against William Clabo, Lane, and Cain Tool & Equipment, Inc. A copy of Leslie Clabo’s complaint was served on Tennessee Mutual as the alleged uninsured motorist insurer of William Clabo, Tennessee Mutual answered in its own name and also filed an answer on behalf of William Clabo. Service upon William Clabo was subsequently acknowledged.

Tennessee Mutual filed a motion for summary judgment predicated on a lack of coverage under the uninsured motorist provision of the policy, which contained an exclusion of any vehicle owned by the named insured from the definition of “uninsured motor vehicle.” Leslie Clabo filed an opposing motion for summary judgment seeking to establish that Tennessee Mutual was obligated to provide uninsured motorist coverage under the insurance policy issued to her, or, in the alternative, that Tennessee Mutual was obligated to provide William Clabo with liability coverage. In ruling on the opposing motions for summary judgment, it appears that the superior court has expanded the issues submitted by the parties and considered whether summary judgment should be issued to Tennessee Mutual in regard to liability coverage. However, no party has raised any issue complaining of the scope of the issues considered by the superior court.

The superior court, upon ruling on the issues of coverage under both the uninsured motorist and liability coverage provisions of the insurance policy at issue, granted a summary judgment in favor of Tennessee Mutual and denied Leslie Clabo’s motion for summary judgment. Plaintiff Leslie Clabo and defendant William Clabo (“appellants”) appeal from this order. Held:

“The policy contains no suggestion that the law of any state other than Tennessee is to govern its construction. Georgia follows the doctrine of lex loci contractus. General Tel. Co. of the Southeast v. Trimm, 252 Ga. 95 (311 SE2d 460) (1984). Under this doctrine ‘ “(w)here a pleaded contract not only is executed in a foreign State, but contains nothing to indicate by the place of performance or otherwise that it was intended to be construed as a Georgia contract, it will be treated as a contract of the foreign State, and governed by its laws. ...” (C)ontracts made and performed in another state will be enforced unless such state’s laws are contrary to the public policy of the enforcing state. ... “A contract should not be held unenforceable as being in contravention of public policy except in cases free from substantial doubt where the prejudice to the public interest clearly appears.” (Cit.)’ Terry v. Mays, 161 Ga. App. 328, 329 (291 SE2d 44) (1982). See also Nationwide Gen. Ins. v. Parnham, 182 Ga. App. 823 (4) (357 SE2d 139) (1987).” Dacosta v. Allstate Ins. Co., 188 Ga. App. 10, 11 (372 SE2d 7). Appellants rely entirely upon Georgia’s public policy and contend that it is violated since the exclusions in the insurance policy at issue combine to deny any coverage.

The exclusion of the vehicle owned by the named insured, Leslie Clabo, from the definition of “uninsured motor vehicle” is consistent with the Georgia uninsured motorist statute. See OCGA § 33-7-11 (b) (1) (D). “Expressions of the legislature through statutes are conclusive on the question of public policy. ...” Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692, 693 (353 SE2d 186). The superior court did not err in granting Tennessee Mutual’s motion for summary judgment on the plaintiff’s claim under the uninsured motorist provisions of the insurance policy at issue or in denying plaintiff’s motion for summary judgment insofar as it relates to her claim for uninsured motorist benefits.

Appellants also contend that the grant of a summary judgment in favor of Tennessee Mutual and the denial of plaintiff’s motion for summary judgment as to liability coverage was error. William Clabo was a “covered person” under the terminology of the insurance policy because he was using plaintiff Leslie Clabo’s covered automobile with her permission. The policy provided coverage “for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident.” Tennessee Mutual’s denial of liability coverage is based on an exclusion from liability coverage for bodily injury to the named insured.

In considering such exclusions, we are governed by our overriding public policy of complete liability coverage for the protection of the public and the insured. Under the current rule, if the exclusion is broader than the tort immunity of this state, the exclusion is against public policy and cannot be enforced. Stepho v. Allstate Ins. Co., 259 Ga. 475, 476 (1) (383 SE2d 887); Southeastern Fidelity Ins. Co. v. Chaney, 259 Ga. 474 (381 SE2d 747); Southern Guaranty Ins. Co. v. Preferred Risk Mut. Ins. Co., 257 Ga. 355 (359 SE2d 665); GEICO v. Dickey, 255 Ga. 661 (340 SE2d 595); Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335 (329 SE2d 136). Since plaintiff Leslie Clabo and defendant William Clabo were no longer married at the time of the collision there is no applicable tort immunity. Thus, the exclusion in the liability coverage must be viewed as contrary to public policy and fail to the extent that it will cause an insured, William Clabo, to be unprotected up to the mandatory liability coverage required under OCGA §§ 33-34-4 (a) (1) and 40-9-37 (a). Compare OCGA § 33-34-4, effective October 1, 1991. Stepho v. Allstate Ins. Co., 259 Ga. 475, 477 (2) , supra. Compare Harbin v. Sams, 171 Ga. App. 263 (319 SE2d 99).

Albeit, the compulsory insurance law does not establish public policy as to sums greater than those required by such law. Thus, if William Clabo is protected up to the amount of the mandatory liability coverage by some other insurance policy, the exclusion in the Tennessee Mutual policy from liability coverage for bodily injury to the named insured will not be viewed as violative of Georgia public policy. Harbin v. Sams, 171 Ga. App. 263, supra.

While appellants contend that the liability exclusion in the Tennessee Mutual policy violates public policy since William Clabo does not have any other liability insurance coverage protecting him and from which plaintiff Leslie Clabo could receive compensation for her injuries, there is no probative evidence that William Clabo lacks protection from other insurance. An affidavit, of an attorney representing plaintiff, submitted in support of plaintiff’s motion for summary judgment states William Clabo had informed him by letter that he does not have any liability insurance. The letter is attached as an exhibit to the affidavit. This portion of the affidavit is clearly hearsay. The reduction of the hearsay statement to writing does not alter its character. Dowdney v. Shadix, 122 Ga. App. 119 (2) (176 SE2d 512). “ ‘[O]rdinarily hearsay testimony is not only inadmissible but wholly without probative value, and its introduction without objection does ■not give it any weight or force whatever in establishing a fact.’ [Cits.]” Quinones v. Maier & Berkele, Inc., 192 Ga. App. 585, 588 (1c) (385 SE2d 719).

A genuine issue of material fact remains concerning whether there is any other insurance protecting William Clabo. Thus, while the superior court was correct in denying plaintiff’s motion for summary judgment, it erred in granting summary judgment in favor of Tennessee Mutual on the issue of whether William Clabo is provided liability coverage.

Judgment affirmed in part and reversed in part.

Sognier, C. J., Carley, P. J., Pope and Cooper, JJ., and Judge Arnold Shulman, concur. Birdsong, P. J., Beasley and Andrews, JJ., concur in part and dissent in part.

Andrews, Judge,

concurring in part, dissenting in part.

I concur in that portion of the opinion and judgment affirming the denial of summary judgment to plaintiff Leslie Clabo, and granting summary judgment to defendant Tennessee Mutual, on the uninsured motorist benefits issue. However, I dissent from that portion of the opinion and judgment concluding that Tennessee Mutual was not entitled to summary judgment on the issue of liability coverage for defendant William Clabo.

The trial court correctly decided this issue in its order granting Tennessee Mutual’s motion for summary judgment. Applying principies drawn from family exclusion clause cases, the trial court concluded, as a matter of law, that the policy provision excluding coverage for bodily injury to the named insured did not violate Georgia public policy because enforcing the exclusion did not leave an insured unfairly exposed to unanticipated liability, or leave an innocent injured party unprotected.

Under Georgia’s statutory mandate for complete automobile liability insurance coverage, family exclusion provisions in a policy excluding coverage, where tort immunity would not otherwise preclude liability, “are not per se prohibited, but must be individually evaluated to determine whether they are against public policy.” Southern Guaranty Ins. Co. v. Preferred Risk &c. Co., 257 Ga. 355, 356 (359 SE2d 665) (1987). In applying this public policy analysis, “[a] clear thread of consistency runs through each of these cases as they apply the dual policies of protection for innocent victims of negligent members of the motoring public and protection of the insured against unfair exposure to unanticipated liability. This results in a basic rule that if either of the interests dealt with in those cases is left unprotected, the exclusionary clause in the insurance contract offends public policy.” Stepho v. Allstate Ins. Co., 259 Ga. 475, 476 (383 SE2d 887) (1989).

Leslie Clabo was the owner of the automobile and the named insured on the policy insuring the automobile. She is suing the driver, William Clabo, for injuries she sustained as a passenger in the automobile. William Clabo was driving the automobile with the permission of his ex-wife, Leslie Clabo, and as a “covered person” under the policy was insured against any bodily injury and property damage for which he becomes legally liable because of the accident. The policy provision at issue excludes liability coverage for bodily injury to the named insured.

If enforcement of the provision excluding coverage either leaves an innocent injured victim unprotected or results in unfair exposure of an insured to unanticipated liability, then the exclusionary clause violates public policy. Stepho, supra at 476. As the named insured in the policy, Leslie Clabo is deemed to know the contents of the policy, including the exclusionary provision, and was in a position to recognize the coverage risks. Southern Guaranty, supra at 356. Though the exclusion leaves her injuries unprotected by the policy, there is no public policy violation because her knowledge or position to know disqualifies her as an innocent unprotected victim. Id. at 356.

Nor does enforcement of this exclusion leave an insured unfairly exposed. As a permissive user of the automobile, William Clabo was a “covered person” and insured against any injuries or damage for which he might become liable as a result of an accident while driving the automobile. As the ex-husband of the named insured, William Clabo’s only claim to insured status under the policy was as a permissive user of the automobile. Enforcing the exclusion against coverage for injuries suffered by the named insured would leave him exposed to tort liability for injuries suffered by Leslie Clabo. Since they were no longer married at the time of the accident, no tort immunity applies.

However, as I read Southern Guaranty the public policy against unfair exposure to unanticipated liability was extended under the facts of that case only to protection of the named insured or an insured member of the household of the named insured. Such protection was not extended to Mrs. Gordon, whose only claim to insured status under the owner’s policy was as a permissive user of the automobile. After determining under the first prong of the public policy analysis that the injured party’s knowledge as a named insured disqualified her as an innocent unprotected victim, the court in Southern Guaranty, supra at 356 stated: “[N] either the named insured nor any member of the household was exposed to additional liability because of the exclusion under the facts of the case. From the standpoint of the named insured, coverage of Mrs. Gordon [the driver of the automobile and an insured under the policy only as a permissive user] is important only insofar as he [the named insured] might be exposed to liability as owner of the car for her accident while driving his car. It is clear that under the present facts he will suffer no such exposure.” In Southern Guaranty the passenger injured while Mrs. Gordon was driving was the wife of the named insured so intrafamily tort immunity prevented his exposure. Although Mrs. Gordon was a permissive user insured, and she was not protected from liability by tort immunity, the court did not extend its public policy analysis to her exposure as an insured under the owner’s policy. The court’s reference to “coverage of Mrs. Gordon” apparently referred to the availability of coverage under her own separate automobile policy, which the court considered important only to the extent such coverage would reduce the exposure of the named insured by providing an alternative source of insurance for damages the named insured would have otherwise been liable for absent his tort immunity. I believe this reflects the court’s judgment that, even in the absence of secondary coverage under another automobile policy, one whose only claim to insured status under the owner’s policy is as a permissive user under the so-called omnibus clause cannot claim the lack of coverage under the owner’s policy was unfair or unanticipated.

In the present case, William Clabo, the permissive user of the automobile, is the only insured exposed to liability by enforcement of the policy exclusion. Under these facts the public policy considerations at issue do not extend to that class of insured so the exclusionary clause is not invalidated by his exposure to liability.

Decided November 7, 1991

Reconsideration denied December 2, 1991

Feagin & Feagin, John E. Feagin, Jr., John Paul Jones, for appellants.

Rogers, Magruder, Sumner & Brinson, J. Clinton Sumner, Jr., Greene, Buckley, Jones & McQueen, Harold S. White, Jr., H. Lee Pruett, for appellee.

Since the exclusionary clause in Tennessee Mutual’s policy does not violate public policy, the policy provides no liability coverage for William Clabo.

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


author: Judge Arnold Shulman.

text:
    A91A0823.
    PRESERVATION ALLIANCE OF SAVANNAH, INC. v. NORFOLK SOUTHERN CORPORATION et al.
    (413 SE2d 519)
   Judge Arnold Shulman.

The appellant, Preservation Alliance of Savannah, Inc., is a nonprofit corporation formed for the purpose of preserving and encouraging the development of historic sites. It filed the present action in the Superior Court of Chatham County against Norfolk Southern Corporation (subsequently replaced as a defendant by Central of Georgia Railroad Company, hereafter referred to as “the railroad”), W. E. Hamby and Associates (“Hamby”), Richard Gilpin, Jr., and the Mayor and Aldermen of the City of Savannah, seeking to enjoin Hamby from demolishing two dilapidated pre-Civil War warehouses located on property owned by the railroad. Hamby had obtained an option to purchase the property, and assisted by architect Richard Gilpin, Jr., it proposed to construct an office building and parking deck on the site. The appellant additionally sought a declaratory judgment to the effect that the appellees had not complied with certain provisions of the Savannah City Code pertaining to the demolition of historic properties.

The warehouses in question, together with certain other facilities owned by the railroad, had been designated a National Historic Landmark in 1978. Consequently, Hamby was required to apply to the Savannah Historic Board of Review for a “certificate of appropriateness” as a prerequisite to demolishing historic structures. It did so, and based on the recommendation of the City’s Preservation Officer, the Board voted unanimously to deny the certificate, whereupon Hamby appealed to the Zoning Board of Appeals, which upheld the denial. Hamby then applied for a demolition permit pursuant to City of Savannah Code Section 8-3029 (k) (2), entitled “Demolition of Historic Structures,” which provides in pertinent part, as follows: “[W]henever a property owner shows a structure classified as historic is incapable of earning an economic return on its value, as determined by a qualified appraiser, and the [Historic Board of Review] fails to approve the issuance of a Certificate of Appropriateness, such structure may be demolished; however, before a demolition permit is issued, notice of the proposed demolition shall be given for twelve months.”

In support of its application for the demolition permit, Hamby submitted the opinion of a real estate appraiser to the effect that the warehouses contributed no value to the land as they currently existed, that their restoration was not economically feasible, and that the highest and best use of the land could not be achieved without their demolition. Approximately two months after Hamby filed its application, the appellant filed its complaint in this case. The trial court granted the appellees’ motion to dismiss the complaint, concluding that the appellant did not have standing to challenge the application under the United States Supreme Court’s decision in Hunt v. Wash. State Apple Advertising Comm., 432 U. S. 333 (97 SC 2434, 53 LE2d 383) (1977), as adopted by the Georgia Supreme Court in Aldridge v. Ga. Hospitality &c. Assn., 251 Ga. 234 (1) (304 SE2d 708) (1983), and that it also lacked standing under the Georgia Supreme Court’s decisions in Lindsey Creek &c. Assn. v. Consolidated Govt. of Columbus, 249 Ga. 488 (292 SE2d 61) (1982), and Powers Ferry Civic Assn. v. Life Ins. Co. of Ga., 250 Ga. 419 (297 SE2d 477) (1982). This appeal followed.

In order to challenge a statute or an administrative action taken pursuant to a statute, the plaintiff must normally show that it has interests or rights which are or will be affected by the statute or the action. See Davis v. Jackson, 239 Ga. 262 (236 SE2d 613) (1977); West v. Housing Auth. of Atlanta, 211 Ga. 133 (84 SE2d 30) (1954). In zoning cases, it has been held that the plaintiff must establish that he has a valuable interest in property affected by the decision complained of and that he will suffer some special damage as a result thereof which is not common to property owners similarly situated. Victoria Corp. v. Atlanta Merchandise Mart, 101 Ga. App. 163 (112 SE2d 793) (1960). The Georgia Supreme Court has referred to this as the “substantial interest-aggrieved citizen” test. Brock v. Hall County, 239 Ga. 160 (236 SE2d 90) (1977). Where a civic association seeks to contest a zoning decision, the Supreme Court has held that it must “own property affected by the rezoning, or [be] joined by individual plaintiffs who have standing to do so.” Lindsey Creek &c. Assn. v. Consolidated Govt. of Columbus, supra, 249 Ga. at 490. Although the present case does not involve a rezoning decision as such, it does unquestionably involve a zoning matter, specifically, Hamby’s right to obtain a demolition permit pursuant to the city’s zoning ordinance.

Decided December 2, 1991.

Inglesby, Falligant, Horne, Courington & Nash, Kathleen Horne, Elsie R. Chisholm, for appellant.

Hunter, Maclean, Exley & Dunn, Darrin L. McCullough, Karsman, Brooks & Callaway, Stanley E. Harris, Jr., Wiseman, Blackburn & Futrell, James B. Blackburn, Miller, Simpson & Tatum, John B. Miller, Robert A. Lewallen, Jr., for appellees.

The appellant, which is in essence a civic association, concedes that it does not own property which would be affected by the demolition. It has not been joined in this suit by any other plaintiff which owns such property and otherwise satisfies the “substantial interest-aggrieved citizen” test. See Brock v. Hall County, supra. Under the holdings in Lindsey Creek &c. Assn. v. Consolidated Govt. of Columbus, supra, and Powers Ferry Civic Assn. v. Life Ins. Co. of Ga., supra, we must accordingly conclude that it is without standing to seek injunctive relief in the present action. We are not persuaded by the appellant’s argument that it has standing under Aldridge v. Ga. Hospitality &c. Assn., supra, due to the fact that at least one of its members, The Savannah College of Art and Design (“SCAD”), owns property adjacent to the subject warehouses. Aldridge involved a trade association which sought declaratory and injunctive relief against the DeKalb County Board of Health on behalf of its members. After acknowledging the absence of Georgia cases addressing the issue of associational standing, the Supreme Court turned to federal precedent and adopted the test set forth in Hunt v. Wash. State Apple Advertising Comm., supra, as follows: “ ‘(A)n association has standing to bring suit on behalf of its members when: (a) Its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.’ ” Aldridge v. Ga. Hospitality &c. Assn., supra, 251 Ga. at 236. Pretermitting whether the appellant could be said to meet this test based on the alleged property interests of only one of its members, we hold that since this case involves the enforcement of a zoning ordinance, the appellant’s standing to sue is governed by the requirements of Lindsey Creek, supra, and Powers Ferry, supra. Cf. Aldridge, supra at 236, n. 1. Accordingly, for the reasons above stated, we hold that its complaint was properly dismissed for lack of standing.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.