author: Ellington, Chief Judge.

text:
    A12A1883.
    HOWARD et al. v. ALEGRIA.
    (739 SE2d 95)
   Ellington, Chief Judge.

In this negligence and personal injury case, the defendants, AAA Cooper Transportation, Inc. (“ACT”), Ace American Insurance Company (“AAIC”), and Robert Lee Howard, Jr. (collectively, “the appellants”), appeal from the trial court’s order, which denied their motion to withdraw an admission in judicio and sanctioned them for discovery abuse. In its order, the court struck the appellants’ joint answer and counterclaim as a sanction for intentionally destroying material evidence, for committing fraud on the court and the plaintiff, and for intentionally filing false responses to discovery requests. The appellants contend that the court erred in concluding that they wilfully committed discovery abuse, fraud, or spoliation of evidence and that it abused its discretion in denying their motion to withdraw and in striking their answer and counterclaim as a sanction for their alleged misconduct. For the following reasons, we affirm the trial court’s order.

1. The appellants contend that the trial court erred in finding that they wilfully and intentionally provided false discovery responses, abused the discovery process, and committed fraud on the court. They argue that the court ignored evidence that they acted reasonably under the circumstances and that the alleged improprieties were unintentional and the result of inadvertent acts or mistakes.

“In determining whether a party has abused discovery, the trial court sits as trier of fact, and this Court will uphold a finding of wilful discovery abuse if there is any evidence to support it.” (Citation and punctuation omitted.) City of Griffin v. Jackson, 239 Ga. App. 374, 377 (1) (520 SE2d 510) (1999). Moreover, the imposition of a sanction for failure to comply with discovery provisions of the Civil Practice Act does not require that a party displays, and the trial court finds, actual wilfulness; instead, it requires at least a conscious or intentional failure to act, as distinguished from an accidental or involuntary noncompliance. Id.; sqq Resource Life Ins. Co. v. Buckner, 304 Ga. App. 719, 734-735 (4) (698 SE2d 19) (2010) (while actual wilfulness is not required for the imposition of a sanction, the presence or absence of wilfulness remains relevant to the choice of sanction).

In this case, the relevant, undisputed facts are as follows. On September 10, 2008, plaintiff/appellee Alan Alegria was driving his pickup truck on Interstate 20 in Greene County when he lost control of his truck. The truck swerved onto the shoulder and then back onto the highway before coming to a stop in the right eastbound lane of the interstate. Shortly thereafter, a tractor trailer owned by ACT and being driven in that lane by Howard collided with the plaintiffs truck. During the collision, the plaintiff sustained severe, permanent injuries.

On September 16, six days after the collision, ACT’s claim manager, Jerry Hill, sent an e-mail to ACT employees notifying them that, “in anticipation of a law suit,” the tractor trailer involved in the collision should be “grounded]” and asking them to send him copies of personnel records, driver logs, maintenance records, and numerous other documents related to Howard, the tractor trailer, or the materials Howard was transporting at the time of the collision. A few days later, Hill received a letter (the “spoliation letter”) from the plaintiff’s attorney requesting information about “every known policy of insurance” held by ACT that was pertinent to the collision, including excess liability insurance and umbrella coverage. The spoliation letter also advised ACT to preserve and maintain the tractor trailer’s post-collision condition, “any downloadable computer data” from the tractor trailer’s computer system, several specific business records and documents relating to Howard’s employment, the tractor trailer, and/or the collision, and all other material that was, or may be, relevant to the incident.

In September 2010, the plaintiff filed a personal injury complaint against Howard, as the driver of the tractor trailer; ACT, as the owner of the tractor trailer and as Howard’s employer; and AAIC, ACT’s liability insurance provider. The appellants filed a joint answer and a counterclaim against the plaintiff, asserting that the plaintiff’s negligence in failing to maintain control of his car caused the collision and resulted in damage to the tractor trailer.

During discovery, the plaintiff sent ACT requests for admissions, interrogatories, and requests for the production of documents. In November 2010, ACT responded as follows: it denied having an excess liability or umbrella insurance policy; it admitted that it had begun repairing the tractor trailer on September 15, 2008, five days after the collision, adding that the repairs were performed “as a result of the accident caused by Plaintiff’s negligence”; and it stated that most of the requested documents “have been destroyed pursuant to [ACT’s] six (6) month record retention policy.” Further, ACT responded “no” to both of the following interrogatories: “Please state whether the tractor trailer involved in the collision contained or utilized an on-board recording device, an on-board computer, tachograph, trip monitor, trip recorder, trip master, or device known by any other name which records the information concerning the operation of the truck[,]” and “Was a tracking device, recording device and/or GPS or Black Box device in or on the [tractor trailer] on 09/10/08?” (Emphasis supplied.) Finally, in response to a request for

[c]opies of any and all printouts of any on-board recording device and on-board computer, tachograph, trip monitor, trip recorder, trip master, or device known by any other name which records information concerning the operation of the truck for the thirty (30) days before the collision through and including thirty (30) days after the collision,

ACT responded that it had “no responsive documents” to that request. (Emphasis supplied.) In fact, a month later, ACT repeated these denials in response to an e-mail from the plaintiff’s counsel requesting clarification of the company’s discovery responses.

In March 2011, the plaintiff’s attorney sent a letter to the defendants’ counsel expressing concerns about the responses to the requests for production and warning the defendants that they had ten days to either produce the requested documents or at least confirm that the documents had been irrevocably destroyed, and, if they failed to comply, he would file a motion to compel. In an e-mailed response, the defendants’ counsel produced a few of the requested documents.

Then, in April 2011, the plaintiff deposed Hill, ACT’s claims manager and the employee who had verified ACT’s responses to interrogatories. Although Hill initially stated that he did not remember whether he had received a spoliation letter from the plaintiff in September 2008, he later admitted that he had received the letter. Hill also admitted that he had immediately anticipated that the collision may result in litigation and, as a result, he had attempted to collect relevant documents from others in the company so they could be preserved, even before he received the spoliation letter. Hill repeatedly testified that, even though he knew that ACT had a duty to collect and preserve the documents, many of the documents referred to in the spoliation letter either had never existed or had been destroyed pursuant to the company’s six month record retention policy. A month after Hill’s deposition, however, ACT filed a supplemental response to the plaintiff’s requests for documents in which it claimed that an unidentified ACT employee had recently discovered some of the requested documents “in a drawer while cleaning out an area around her desk.”

In May 2011, the parties agreed to conduct depositions of two nonparty witnesses; the depositions were scheduled for May 23. The appellants, however, issued subpoenas duces tecum to the witnesses that ordered them to produce certain documents to the appellants’ attorneys’ office on May 16, a week before the scheduled depositions. The appellants did not send a notice of the subpoenas to the plaintiff. The appellants and their attorneys met with one of the witnesses on May 16, and the witness executed an affidavit at the appellants’ request. After that meeting, the appellants notified the plaintiff that the deposition of that witness had been cancelled. When the plaintiff’s counsel learned about the secret subpoenas and the appellants’ meeting with the witness, he demanded that the appellants produce the subpoenas, the witness’ affidavit, and the documents that the witness had provided to them. Although the appellants assured the plaintiff in writing that they would produce these materials, they subsequently claimed that they had not received any documents from the witness on May 16, and, as a result, would not produce any.

On June 15,2011, the plaintiff filed a motion for sanctions and to strike the appellants’ answer and counterclaim, contending that the appellants committed fraud, discovery abuse, intentional misrepresentation, and spoliation of material evidence. Then, on July 14, almost three years after the collision and ACT’s receipt of the spoliation letter, the appellants’ counsel sent a letter to the plaintiff’s counsel, which stated as follows:

As a result of Plaintiff’s Motion for Sanctions, [ACT] and defense counsel has [sic] discussed with Volvo representatives the capabilities of the engine control unit [of the tractor trailer]. On or about July 13, 2011, Volvo representatives informed [ACT] and defense counsel that the subject tractor contained an SRS Module which may contain crash or near crash data. As a result of this new information, the subject tractor trailer has been grounded... until we can coordinate a date and time for the SRS module contained in the tractor to be removed and tested at an authorized facility of Volvo.

(Emphasis supplied.) The appellants also supplemented some of their previous responses to the interrogatories and produced several other documents that they had previously insisted were destroyed or had never existed. Among these documents was a copy of a September 24, 2008 e-mail from an insurance adjuster to Hill and another ACT employee; the e-mail stated that “I have the [declaration] page for the primary [insurance] policy if you need it. Jerry [Hill] has the excess [insurance] info.”

During the sanctions hearing on October 3, 2011, the appellants claimed that the plaintiffs allegations of discovery abuses and other wrongdoing were simply a “manufactured web of conspiracy” designed to shift the focus from the issue of who was liable for the collision. In response to the plaintiff’s specific allegations, the appellants asserted that, although they were required to provide the plaintiff with notice of the subpoenas duces tecum, pursuant to OCGA § 9-11-5 (a), their failure to provide such notice was simply an inadvertent “administrative mistake” and that, because the nonparty had produced no documents, there was no prejudice to the plaintiff; that they never intentionally provided false responses to the discovery requests and that their numerous, incorrect responses were simply the result of innocent mistakes about what they had believed was true at the time they gave the responses; that they had misunderstood the interrogatories and the request for documents concerning whether the tractor trailer had an “on-board” computer to refer, instead, to “an external or separate device,” and, as a result, they incorrectly denied that the tractor trailer had on-board electronic control units; and that, even if they improperly downloaded and destroyed data from the tractor trailer’s electronic control units, the information would not have been helpful to the plaintiff.

The appellants also responded to claims that ACT’s repair of the tractor trailer constituted spoliation of evidence by tendering a letter (the “inspection letter”) that they claimed they had sent to the plaintiff’s attorney on October 22, 2008, offering the plaintiff the opportunity to inspect the tractor trailer before it was repaired. The plaintiff, however, argued that the appellants had fraudulently fabricated the inspection letter and showed the court that there were material differences between that letter and a similar letter his attorney received from the appellants in October 2008. Both letters were identical except that the letter received by the plaintiff’s attorney did not include any statement about the opportunity for the plaintiff to inspect the tractor trailer. Further, regardless of the timing or content of the inspection letter, the plaintiff reminded the court that the appellants had already specifically admitted in a verified interrogatory response that ACT started repairing the tractor trailer on September 15, 2008, five days after the collision and over a month before the appellants allegedly sent the inspection letter. Even when confronted with this admission in judicio, however, the appellants did not attempt to withdraw the admission during the sanctions hearing.

Finally, two days after the sanctions hearing, but before the court ruled on the motion for sanctions, the appellants produced documents showing that they had $50 million in excess liability insurance coverage at the time of the collision, even though they had consistently denied up to that point that they had any excess insurance coverage. Moreover, on the same day, ACT filed a motion to withdraw its admission that it had begun repairing the tractor trailer on September 15, 2008, and that the repairs were performed “as a result of the accident caused by Plaintiff’s negligence.” The motion was accompanied by an affidavit of ACT’s director of maintenance, who stated that, based upon his review of ACT’s electronic service and repair records, ACT did not actually repair the tractor trailer until January or February 2009.

In its order on the plaintiffs motion for sanctions and ACT’s motion to withdraw its admission, the trial court found, as a matter of fact, that ACT began repairing the tractor trailer on September 15, 2008, five days after the collision, and that, on or around the same day, ACT downloaded information from the tractor trailer’s computer modules. The court found that that information was “the highest and best evidence of vehicle defects, system malfunctions, and brake problems and of what actually occurred immediately prior to and during the [collision],” and that, as a result of the download, data that was “critical” to the plaintiff’s negligence claim had been destroyed. The trial court then specifically concluded that the appellants had, among other things, committed the following improper acts:

• Intentionally abused the discovery process and prejudiced the plaintiff by spoliating “crucial” evidence, i.e., by destroying computer records and other documents and by making repairs on the tractor trailer, when it is undisputed that they had already anticipated that there would be litigation arising from the collision and had received the spoliation letter from the plaintiff;

• Acted wilfully in bad faith and with a conscious disregard of the consequences by repeatedly and knowingly making false statements that relevant, requested documents either never existed or had been destroyed within six months of the collision, but, after the plaintiff filed his motion for sanctions, claiming that they had just found the documents, a claim the court deemed incredible;

• Intentionally fabricated evidence;

• Intentionally and falsely denied the existence of computer modules on the tractor trailer;

• Intentionally and falsely denied the existence of excess liability insurance coverage; and

• Intentionally violated statutory law and Georgia’s Rules of Professional Conduct and committed a fraud on the court by procuring the subpoenas for documents without giving the required notice to the plaintiff.

In sum, the court concluded that the appellants’ claims of innocence or mistake lacked any credibility, that their false responses to discovery requests equaled a total failure to respond; that the appellants had taken steps, intentionally and in bad faith, to conceal pertinent and potentially damaging evidence in this case; that there was no way to remedy the destruction of evidence; and that the plaintiff was prejudiced as a result of this misconduct. Consequently, the court struck the appellants’ answer and counterclaim as a sanction pursuant to OCGA § 9-11-37 (b) (2) (C). Further, in denying ACT’s motion to withdraw its admission about the timing of its repairs to the tractor trailer, the court concluded that the evidence ACT had filed with its motion was not credible in light of the other evidence adduced thus far in the litigation.

We have reviewed the record and find that there is evidence to support the trial court’s conclusions that the appellants’ claims of innocence or mistake lacked any credibility and that they had intentionally taken steps to prevent the plaintiff’s discovery of pertinent and potentially damaging evidence in this case. Accordingly, such conclusions must be affirmed. City of Griffin v. Jackson, 239 Ga. App. at 377 (1).

2. The appellants argue that the court erred in finding that they had intentionally spoliated certain material evidence by deleting the tractor trailer’s computer data and by repairing the tractor trailer before giving the plaintiff an opportunity to inspect it.

(a) Regarding the computer data, the appellants argue that, even if they improperly destroyed information from the computer units, the data would not have been helpful to the plaintiff. The plaintiff’s expert in accident reconstruction, however, made the following statement in his affidavit:

Computer modules on the [tractor trailer] record a significant amount of relevant information . . . [which] can be downloaded from the computer modules and is used to determine what occurred at the time of the collision. . . . [These] modules . . . receive Information from multiple sensors located throughout the vehicle [and] would have been activated by the crash [at issue]. . . . [The] modules record valuable information concerning the operation of the truck such as vehicle speed, engine speed, braking information, amount of accelerator involvement, governor position, whether or not the cruise control was engaged, and system or component defect information.

(Emphasis supplied.) According to the expert, when ACT downloaded information from the computer modules after the collision, it destroyed relevant information that could have been obtained from the on-board computers and that was “the highest and best evidence of what actually occurred at the time of the collision in this case.”

Because the trial court, as the trier of fact during the sanctions hearing, was solely responsible for weighing the evidence and resolving any conflicts in the evidence, and because there was evidence to support its conclusion that the plaintiff was prejudiced by the appellants’ destruction of information from the computer units, this claim of error lacks merit. See City of Griffin v. Jackson, 239 Ga. App. at 377 (1).

(b) As for the repairs to the tractor trailer, the appellants contend that the trial court erred in finding that they had spoliated evidence, arguing that the plaintiff had waived his opportunity to inspect the tractor trailer’s post-collision condition by failing to do so, despite being notified as early as December 2008 that ACT intended to make the repairs in January or February 2009. As shown above, however, the trial court found as a matter of fact that ACT started making the repairs on September 15, 2008, based on ACT’s admission of that fact and other evidence. Thus, by December 2008, the appellants had already altered the condition of the tractor trailer. Consequently, the appellants’ argument that the plaintiff’s failure to timely inspect the tractor trailer absolves them of any culpability for spoliating evidence lacks merit.

3. The appellants contend that the trial court erred in denying their motion to withdraw their admission that they performed some repairs on the tractor trailer on September 15, 2008, five days after the collision.

Under OCGA § 9-11-36 (b),

[a]ny matter admitted under this Code section is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission... . [T]he court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.

“The court need not consider the second prong of the test if the party seeking to withdraw admissions fails to establish the first prong, which is not perfunctorily satisfied.” (Citation and punctuation omitted.) Fox Run Properties v. Murray, 288 Ga. App. 568, 570 (1) (654 SE2d 676) (2007).

In order to show that the presentation of the merits of this case would be subserved by the withdrawal, the appellants were required to establish that

the admitted requests either could have been refuted on trial of the issues by admissible evidence having a modicum of credibility or that the admitted requests were incredible on their face; and that the denials being tendered to the court with the motion to withdraw had not been offered solely for purposes of delay.

(Citation and punctuation omitted; emphasis supplied.) Fox Run Properties v. Murray, 288 Ga. at 570-571 (1). “We will not disturb the trial court’s ruling on a motion to withdraw admissions absent a showing of abuse of discretion.” (Citation omitted.) Id. at 570 (1).

The appellants argue that they presented “undisputed, credible evidence” that showed that ACT did not begin repairs on the tractor trailer until January 2009. However, the evidence, which consisted of two affidavits of ACT’s director of maintenance and supporting documents, was not produced until after the October 2011 hearing on the plaintiff’s motion for sanctions, and the plaintiff disputed the accuracy and credibility of this newly produced evidence. Moreover, the trial court specifically found that this new evidence was not credible in light of the other evidence adduced thus far in the litigation.

Given the court’s conclusion that the evidence produced by the appellants to support their motion to withdraw their admission was not credible, the appellants failed to meet their burden of showing that their admission would have been “refuted on trial of the issues by admissible evidence having a modicum of credibility.” (Citation and punctuation omitted.) Fox Run Properties v. Murray, 288 Ga. App. at 570 (1). Consequently, the trial court did not abuse its discretion in denying the motion to withdraw. Id.

4. The appellants contend that the trial court erred in striking their joint answer and counterclaim as a sanction for discovery abuse, pursuant to OCGA § 9-11-37. Specifically, they argue that the court improperly concluded that their answers to two interrogatories were knowingly false and wilfully made in bad faith and that, instead, their answers evidenced a dispute between the parties as to the meaning of the interrogatories that had to be resolved via a motion to compel, pursuant to OCGA § 9-11-37 (a). Accor ding to the appellants, the plaintiff’s failure to file a motion to compel precluded the court from imposing any sanctions for discovery abuse under OCGA § 9-11-37 (d) (1). Under the circumstances presented here, we disagree.

(a) First, contrary to the appellants’ claim that our review is de novo, “[i]n matters involving discovery disputes, trial judges have broad discretion in controlling discovery, including the imposition of sanctions, and this Court will not reverse a trial court’s decision on such matters unless there has been a clear abuse of discretion.” (Punctuation and footnote omitted.) Mincey v. Ga. Dept. of Commu nity Affairs, 308 Ga. App. 740, 747 (2) (708 SE2d 644) (2011).

This is because trial judges, through their direct involvement with the case, the parties, and the attorneys, and their familiarity with the actions of the parties in the conduct of discovery in similar cases that are properly brought to their attention, are in the best position to evaluate the parties’ conduct and to determine the appropriate level of sanctions.

(Citation and punctuation omitted.) Resource Life Ins. Co. v. Buckner, 304 Ga. App. at 734 (4).

(b) Second, the appellants’ arguments ignore the fact that the trial court did not impose sanctions simply because they had intentionally provided false answers to two interrogatories, but also because they had intentionally and repeatedly lied about whether certain requested documents existed, failed to produce requested documents, fabricated evidence, and committed other acts of discovery abuse, as recounted above. Thus, to the extent that they assert that the sanctions imposed were unwarranted or too extreme, that assertion lacks merit.

(c) Third, on the issue of whether, under the circumstances presented, the plaintiff was required to file a motion to compel discovery before the court was authorized to impose any discovery sanctions, OCGA § 9-11-37 (a) (3) provides as follows: “For purposes of the provisions of [the Civil Practice Act] which relate to depositions and discovery, an evasive or incomplete answer is to be treated as a failure to answer[.]” (Emphasis supplied.) See Mincey v. Ga. Dept. of Community Affairs, 308 Ga. App. at 747 (2).

An interrogatory answer that falsely denies the existence of discoverable information is not exactly equivalent to no response. It is worse than no response. When there is no response to an interrogatory or the response is devoid of content, the party serving the interrogatory at least knows that it has not received an answer. It can move the court for an order to compel a response. If the response is false, however, the party serving the interrogatory may never learn that it has not really received the answer to the interrogatory. The obstruction to the discovery process is much graver when a party denies having the requested information than when the party refuses to respond to an interrogatory asking if such information is available.

(Citation and punctuation omitted; emphasis in original and supplied in part.) Resource Life Ins. Co. v. Buckner, 304 Ga. App. at 737 (4) (b). Further, a trial court is authorized to strike a party’s pleadings or impose other sanctions for discovery abuse, including the party’s failure to respond to a document production request or an interrogatory. OCGA § 9-11-37 (b) (2) (C), (d) (1). Therefore, if a party wilfully and knowingly responds to discovery requests with false answers to interrogatories and/or with false statements unequivocally denying the existence of requested discoverable materials, the trial court is authorized to consider this a failure to respond under OCGA § 9-11-37 (a) (3), and, as a consequence, immediately sanction the party pursuant to OCGA § 9-11-37 (b) (2) (A)-(C) and(d) (1). See MARTA v. Doe, 292 Ga. App. 532, 535-537 (1) (664 SE2d 893) (2008) (An intentionally false response to a discovery request about a pivotal issue in the litigation constituted a total failure to respond to discovery that authorized the trial court to immediately impose sanctions under OCGA § 9-11-37 (d) (1).).

It follows that, when a defendant wilfully, knowingly, falsely, consistently and unequivocally denies the existence of requested discoverable documents, the plaintiff is not required to obtain an order compelling discovery before seeking sanctions under OCGA § 9-11-37 (d) (1). MARTA v. Doe, 292 Ga. App. at 536-537 (1); see Deep South Constr. v. Slack, 248 Ga. App. 183, 186 (2) (546 SE2d 302) (2001) (An order compelling discovery is not a condition precedent for imposing sanctions under OCGA § 9-11-37 (b) (2) (C) or (d) (1).). Instead, prior to the imposition of such sanctions, all that is required is a request for sanctions, notice to all parties, and a motion hearing to determine if the offending party’s failure to respond was wilful. Exum v. Norfolk Southern R., 305 Ga. App. 781, 782-783 (1) (701 SE2d 199) (2010); Stolle v. State Farm Mut. Auto. Ins. Co., 206 Ga. App. 235, 237 (3) (424 SE2d 807) (1992).

In this case, as the trial court’s order clearly shows (and as explained above), its decision to strike the appellants’ answer and counterclaim was based upon its conclusion that the appellants intentionally lied in numerous responses to interrogatories and document requésts, abused its subpoena power, and intentionally destroyed crucial and probably damaging evidence, as well as the court’s express rejection of the appellants’ claim that their actions were the result of a “series of inadvertent mistakes.” Moreover, the court specifically concluded that the appellants’ intentionally false responses to the discovery requests constituted a “total failure to respond.” Consequently, we find no abuse of discretion in the trial court’s decision to strike the appellants’ answer and counterclaim as a sanction for wilful discovery abuse, pursuant to OCGA § 9-11-37 (a) (3), (b) (2) (C), and (d) (1). See MARTA v. Doe, 292 Ga. App. at 537 (1); Deep South Constr. v. Slack, 248 Ga. App. at 186 (2) (affirming the trial court’s dismissal of plaintiff’s action as a sanction for a failure to produce requested documents); see also Resource Life Ins. Co. v. Buckner, 304 Ga. App. at 734-739 (4) (affirming the trial court’s sanction of the defendant under OCGA § 9-11-37 (d) based upon the defendant’s patently false discovery responses and its misrepresentations to the trial court); City of Griffin v. Jackson, 239 Ga. App. at 377-382 (1) (affirming the trial court’s striking of the defendant’s answer where the defendant repeatedly lied about the existence of certain documentary evidence in discovery responses).

5. The appellants contend that the trial court abused its discretion in striking the joint answer as to Howard and the insurance company, AAIC, based upon discovery abuse committed solely by ACT. They argue that the plaintiff’s interrogatories, requests for documents, and requests for admissions were all addressed solely to ACT and, therefore, Howard and AAIC had no duty to respond to them and were not bound by ACT’s fraudulent responses.

In this case, it is undisputed that Howard was ACT’s employee at the time of the collision and that ACT’s liability is based, in part, on respondeat superior; that AAIC is ACT’s insurer; that all three defendants jointly filed an answer and counterclaim; that they have been jointly represented by the same attorneys throughout this litigation; that they jointly responded to the plaintiff’s motion for sanctions; that they jointly filed nonparty affidavits after the plaintiff filed his motion for sanctions; that they were jointly represented by counsel during the sanctions hearing; that they jointly filed a supplemental response to the plaintiff’s motion after the hearing; and that, after the court issued its order striking their joint answer and counterclaim, they filed a joint request for a certificate of immediate review.

Decided March 13, 2013

Reconsideration denied April 3, 2013

Kindu A. Walker, Charles G. Ragsdale, Christopher E. Reeves, MaryBeth V Gibson, Austin J. Hemmer, for appellants.

Gammon, Anderson & McFall, W. Wright Gammon, Jr., Butler, Wooten & Fryhofer, Joel O. Wooten, Jr., Brandon L. Peak, James R. Oxford, Jr., for appellee.

After receiving the certificate, the appellants filed a joint application for interlocutory appeal in this Court, and we granted the application on February 29, 2012. Then, on March 8, the appellants filed amendments to their original pleadings in the trial court, with ACT and AAIC jointly filing an amended answer and counterclaim and Howard filing a separate amended answer. At that time, all three appellants were still represented by the same attorneys who had represented them jointly throughout the litigation. However, despite this apparent, albeit belated, attempt to establish that they were not jointly culpable for the discovery abuse at issue on appeal, the appellants still jointly filed a notice of appeal in the trial court, as well as an appellate brief and reply brief in this Court. Thus, the record does not support the appellants’ arguments.

Moreover, the appellants failed to raise this issue in the trial court in any manner or at any time prior to seeking an interlocutory appeal from its sanctions order. Under these circumstances, we conclude that they have waived their opportunity for appellate review of this issue. See West v. State, 300 Ga. App. 583, 585 (2) (685 SE2d 486) (2009) (“Issues and objections not raised in the trial court and ruled on by the trial court are deemed waived and cannot be raised for the first time on appeal.”) (footnote omitted).

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

       This Court granted the appellants’ application for an interlocutory appeal, Case No. A12I0148.

       In fact, in response to interrogatories from the plaintiff, ACT admitted that it and its insurer “first anticipated litigation” arising from the collision on the day of the collision, September 10, 2008.

       “[Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” (Citation and punctuation omitted; emphasis in original.) Silman v. Assocs. Bellemeade, 286 Ga. 27, 28 (685 SE2d 277) (2009).

       The interrogatory responses were verified by Hill, ACT’s claims manager.

       Notably, in those responses, the appellants did not raise any objection or contend that the interrogatories were vague or confusing; they simply answered, “no.” See OCGA § 9-11-33 (a) (2) (“Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall he stated in lieu of an answer.”).

       See OCGA § 9-11-5 (a) (“[E]very written notice, appearance, demand, offer of judgment, and similar paper shall be served upon each of the parties.”); see also OCGA §§ 9-11-34 (a) (1), (c) (1) (Requests to produce documents may be made upon nonparties, “in which event a copy of the request shall be served upon all parties of recordj.]... The party making a request under this Code section shall, upon request from any other party to the action, make all reasonable efforts to cause all information produced in response to the nonparty request to be made available to all parties.”); 9-11-45 (a) (1) (C) (Subpoenas to nonparties for discovery “shall be issued and served in accordance with law governing issuance of subpoenas for attendance at court[.]”).

       The appellants concede that, by striking their answer and counterclaim, their liability for the collision and the resulting injuries to the plaintiff was established as a matter of law, and that the only remaining issue to be determined at trial is the amount of damages incurred by the plaintiff.

       The appellants have abandoned any reliance on the October 2008 inspection letter, based ■upon the court’s finding that they had fraudulently fabricated it.

       See Division 3, infra, regarding the appellants’ motion to withdraw that admission.

       Although the appellants cite to Mayer v. Interstate Fire Ins. Co., 243 Ga. 436 (254 SE2d 825) (1979), in support of their argument that a party must always file a motion to compel before seeking sanctions under OCGA § 9-11-37 (d), Mayer involved incomplete or evasive answers to discovery requests that evidenced a dispute as to whether the answers were adequate and accurate. Id. at 438-440 (2). In contrast, the responses at issue in this case were complete, clear and unequivocal (albeit false) statements that the plaintiff was justified in relying upon without further inquiry as to their accuracy. Thus, the Mayer rule cited by the appellants is inapplicable to this case.

       See also Santora v. American Combustion, 225 Ga. App. 771, 773 (1) (b) (485 SE2d 34) (1997) (This Court affirmed the dismissal of the plaintiff’s case after he wilfully attempted to conceal a crucial document from the opposing party by repeatedly offering false and misleading discovery responses that effectively prevented the opposing party from compelling production of the document. This Court held that “the requests and rulings on the part of counsel and the trial court to ensure completion of discovery [would] be construed as the equivalent of a motion to compel and [an] order compelling discovery under OCGA § 9-11-37 (a).”) (citation and punctuation omitted).


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A12A2083.
    GWINNETT COUNTY v. SARGENT et al.
    (738 SE2d 716)
   Boggs, Judge.

Gwinnett County (“the County”) appeals following a $2 million jury verdict in favor of Faustina Sargent, individually, and as administrator of the estate of Willie Allen Sargent, Jr. (“the appellees”) in this wrongful death action. The County contends that the trial court erred in ruling that the waiver of its sovereign immunity was not limited to $100,000, and that it also erred in granting the appellees’ motion in limine to exclude any evidence of the deceased’s blood-alcohol level. We agree that the trial court erred in both respects, and we therefore reverse.

On December 15, 2006, around midnight, a Gwinnett County police officer was traveling on Stone Mountain Highway with no siren or emergency lights when he struck a vehicle driven by Willie Sargent as Sargent turned left in front of him from the turn lane. Sargent died at the scene. It is undisputed that the officer was driving in violation of the posted speed limit, 79 miles-per-hour in a 45 mile-per-hour speed zone. He was responding to a call for back-up for another officer investigating a suspicious person, but violated police department policy by speeding in response to the call, which was considered “non-emergency.” Also in violation of police department policy, the officer was driving in excess of the speed limit without using his siren and emergency lights.

The appellees filed suit against the County for the wrongful death of Sargent. The County denied liability and asserted that it was entitled to sovereign immunity, that the decedent was negligent, and that he assumed the risk because of his voluntary intoxication.

The County subsequently moved for partial summary judgment “to limit the amount of monetary damages that may be awarded to Plaintiff” to the statutory maximum waiver of sovereign immunity of $100,000. Following the argument of counsel, the trial court denied the County’s motion.

Prior to trial, the appellees moved in limine to exclude any evidence that the decedent had a blood-alcohol level of 0.192 at his death. The trial court held a hearing on the matter, and granted the appellees’ motion, finding that any probative value from the admission of the evidence was outweighed by the danger of undue prejudice. The court nevertheless ruled that “[t]he issues of whether the decedent was negligent in turning across three lanes of traffic at night and whether this [o]fficer could have been seen by [the decedent] are still issues for trial.”

After a three-day jury trial, the jury found in favor of the appellees in the amount of $2,000,000. The jury found further that the decedent was “negligent five percent.” The County immediately moved to have the jury’s verdict reduced to $100,000 pursuant to OCGA § 36-92-2 (a) (1) (statutory waiver of sovereign immunity). The trial court denied the motion and entered a judgment in favor of the appellees in the amount of $1,900,000, deducting $100,000 based upon the jury’s finding that the deceased was five percent negligent.

1. The County argues that the trial court erred in granting the appellees’ motion in limine to exclude evidence that the deceased’s blood-alcohol level was 0.192. “We review a trial court’s ruling on a motion in limine for abuse of discretion. Amotion in limine is properly granted when there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial.” (Citation, punctuation and footnote omitted.) Hankla v. Jackson, 305 Ga. App. 391, 392 (1) (699 SE2d 610) (2010).

A forensic toxicologist testified at the hearing on the motion in limine that the deceased’s blood-alcohol level was 0.192 at the time of his death. She opined that this would affect an individual’s ability to perceive and react. An investigator with the Gwinnett County Police Department Accident Investigation Unit also testified at the hearing, and the trial court viewed a video recording of the few seconds before impact recorded by a nearby business. The investigator testified that based upon his accident reconstruction and data recorded by the officer’s vehicle, five seconds before impact, the officer was traveling at 79 miles-per-hour and was 579 feet, or about one-tenth of a mile, away from the deceased’s vehicle. He explained further that the deceased’s sight distance was 1,159 feet and that the deceased had five seconds to see the officer “before he committed to making the turn.” The investigator determined that there were three contributing factors to the accident:

You are going to have [the officer’s] speed, which, obviously, increased the severity of the accident. You’re going to have [the decedent] failing to yield while turning left. And you’re also going to have [the decedent’s] blood[-]alcohol level, which,. 192, I’ve pulled over people before at a. 192, even less than that, and most people exhibit... problems in judgment and perception and those types of manifestations.

We have held that “the question of whether a motorist’s' consumption of alcohol impaired his driving capabilities and entered into the proximate cause of the collision is best left for the jury’s resolution.” (Citation and punctuation omitted.) Schwartz v. Brancheau, 306 Ga. App. 463, 467 (2) (702 SE2d 737) (2010). And

[u]nless the potential for prejudice in the admission of evidence substantially outweighs its probative value, the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors.

(Citations and punctuation omitted.) Id.

In Schwartz, we held that evidence that the driver’s breath smelled of alcohol had a logical connection to the issue of whether he was intoxicated, and that the trial court did not abuse its discretion in permitting the evidence where it had some relation to his driving capability before the collision. Id. Here, much stronger evidence of intoxication was presented, a blood-alcohol level of 0.192, more than twice the legal limit. See OCGA § 40-6-391 (a) (5) (0.08 grams).

Finney v. Machiz, 218 Ga. App. 771 (463 SE2d 60) (1995), citedby the appellees, is distinguishable. In Finney, a vehicle in which the plaintiff was a passenger swerved over the centerline of the road striking a van driven by the defendant. Id. The evidence showed that the defendant was under the influence of alcohol and cocaine. Id. We held that the alleged negligence of the defendant in driving under the influence played “no causative role in the collision” as a matter of law, and that the sole proximate cause was the vehicle in which the plaintiff was a passenger crossing the centerline and striking the defendant’s vehicle. Id. at 773. In contrast to Finney, however, the jury here was charged with deciding whether the officer’s action of speeding at night without a siren or emergency lights, or the decedent’s action of turning left in front of the officer, or a combination of both, was the proximate cause of the accident.

Under these particular circumstances, the issue of whether the decedent’s blood-alcohol level factored into the proximate cause of the collision should have been presented for the jury to resolve. See Schwartz, supra, 306 Ga. App. at 467-468 (2). The evidence showed that the decedent made a left turn from the turn lane across three lanes of traffic into the path of the speeding officer. Evidence that his blood-alcohol level was more than twice the legal limit, and that such a blood-alcohol level would affect a person’s perception and reaction time was relevant to the jury’s consideration of whether the decedent was negligent in turning left in front of the officer and therefore failed to yield the right of way. Moreover, the jury did in fact determine that the decedent was “five percent negligent,” presumably for the failure to yield. The trial court therefore abused its discretion in excluding evidence of the decedent’s blood-alcohol level.

2. The County also contends that the trial court erred in allowing a judgment in excess of the statutory maximum waiver of its sovereign immunity. “The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” (Citation and punctuation omitted.) Currid v. DeKalb State Court Probation Dept., 285 Ga. 184, 186 (674 SE2d 894) (2009). And “[a] waiver of sovereign immunity must be established by the party seeking to benefit from the waiver.” (Citation and footnote omitted.) Smith v. Chatham County, 264 Ga. App. 566, 567 (1) (591 SE2d 388) (2003).

In 2002, the Georgia legislature enacted OCGA § 36-92-1 et seq., an Act titled “Waiver of Immunity for Motor Vehicle Claims.” It applies “to all claims and causes of actions arising out of events occurring on or after January 1, 2005.” OCGA § 36-92-5. The maximum waiver amount varies according to the date of the incident. See generally OCGA § 36-92-2. The accident here occurred on December 16, 2006; therefore, as provided in OCGA § 36-92-2 (a) (1):

The sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived up to the following limits: . . . $100,000.00 because of bodily injury or death of any one person in any one occurrence,... for incidents occurring on or after January 1, 2005, and until December 31, 2006[.]

Subsection (d) provides three options by which the waiver limits in subsection (a) can be increased:

The waiver provided by this chapter shall be increased to the extent that:
(1) The governing body of the local governmental entity by resolution or ordinance voluntarily adopts a higher waiver;
(2) The local government entity becomes a member of an interlocal risk management agency created pursuant to Chapter 85 of this title to the extent that coverage obtained exceeds the amount of the waiver set forth in this Code section; or
(3) The local government entity purchases commercial liability insurance in an amount in excess of the waiver set forth in this Code section.

The parties agree that the County is not a member of an interlocal risk management agency and did not purchase commercial liability insurance. Rather, the disagreement here is whether the County, by resolution or ordinance, voluntarily adopted a higher waiver pursuant to subsection (d) (1).

The County argues that it did not adopt a higher waiver by resolution or ordinance and that therefore the maximum amount of its waiver is $100,000 pursuant to OCGA § 36-92-2 (a) (1). The County presented the affidavit of its Chairman of the Board of Commissioners who averred that the County did not “[i]n 2006 or in subsequent years” voluntarily by resolution or ordinance adopt a waiver of sovereign immunity above the statutory limits. The appellees argue however, that because the County, beginning in 2004, adopted budgets by resolution that appropriated sums to an Automobile Liability Fund and a Risk Management Fund (generally referred to as “Funds”), the County voluntarily adopted a self-insurance plan and waived its immunity to the extent of the full cash balances of those Funds. They contend that OCGA § 36-92-2 (a) and (d) must be considered in pari materia with OCGA § 36-92-4 (a) and (e) . OCGA § 36-92-4 (a) provides:

Local government entities may provide for the payment of claims, settlements and judgments, and their associated costs through any method including, but not limited to, self-insurance, use of a fund within the local government’s budget for the payment of claims, the purchase of liability insurance, participation in an interlocal risk management agency organized pursuant to Chapter 85 of Title 36, or a combination thereof.

(Emphasis supplied.) And subsection (e) provides in relevant part:

Where policies of insurance or contracts of indemnity have not been purchased or entered into by a local government entity for the purposes of paying claims and judgments under this chapter, the fiscal year aggregate liability of any local government entity under this chapter shall not exceed any self-insurance or other reserve or fund established to pay claims arising out of this chapter. . . ,

But while OCGA § 36-92-4 (a) provides several options for a County to provide for the payment of claims (including the use of self-insurance or Funds created within the County’s budget), only OCGA § 36-92-2 (d) governs the methods by which a County may increase its waiver.

It is a well-settled rule that “[a]s long as the (statutory) language is clear and does not lead to an unreasonable or absurd result, ‘it is the sole evidence of the ultimate legislative intent.’ ” (Citations and punctuation omitted.) Lumpkin County v. Ga. Insurers Insolvency Pool, 292 Ga. 76, 78 (2) (734 SE2d 880) (2012). OCGA § 36-92-2 (d) (1) provides that a waiver shall be increased to the extent that a County “by resolution or ordinance adopts a higher waiver.” This language anticipates an affirmative act on the part of a County to explicitly adopt a higher waiver. The appellees point to no affirmative act of adopting a waiver by the County but argue that the Automobile Liability and Risk Management Funds createdby the County impliedly increased its statutory waiver. But implied waivers are not favored. See Ga. Dept. of Corrections v. James, 312 Ga. App. 190, 194 (1) (718 SE2d 55) (2011). And statutes providing for a waiver of sovereign immunity are in derogation of the common law and are strictly construed against a finding of waiver. Gish v. Thomas, 302 Ga. App. 854, 860 (2) (691 SE2d 900) (2010). Had the legislature intended to allow a waiver to be increased simply by virtue of the existence of a County’s self insurance or Funds created by a County to pay liability claims, it could have done so explicitly. See, e.g., Gates v. Glass, 291 Ga. 350, 353 (729 SE2d 361) (2012) (“If the legislature intended to do otherwise, i.e., to apply a narrow definition of ‘motor vehicle’ to situations in which local governments purchased automobile liability insurance coverage for amounts over and above the prescribed sovereign immunity limits, ‘it would have done so explicitly.’ [Cit.]”).

The appellees cite this court’s decisions in Mims v. Clanton, 215 Ga. App. 665 (452 SE2d 169) (1994) (physical precedent only) and Mims v. Clanton, 222 Ga. App. 657 (475 SE2d 662) (1996) to support their argument that the County has waived its sovereign immunity to the extent of its self-insurance. But those cases are distinguishable and were decided prior to the legislature’s enactment of OCGA § 36-92-1 et seq. While those decisions were consistent with the then-applicable law governing waiver of sovereign immunity, they cannot be relied upon to arrive at the conclusion urged here by the appellees. The legislature, through the enactment of OCGA § 36-92-1 et seq., has since declared specific limits for the waiver of sovereign immunity arising out of claims for the County’s negligent use of its motor vehicles, and has provided three specific methods by which the County may increase that waiver. The appellees, as the parties seeking the benefit of the waiver, failed to meet their burden of establishing that the County increased its waiver. The County’s waiver of sovereign immunity was therefore limited to the statutory maximum of $100,000 as provided in OCGA § 36-92-2 (a) (1). The trial court erred in ruling otherwise.

Decided March 12, 2013

Reconsideration denied April 3, 2013

O’Quinn & Cronin, Michael A. O’Quinn, for appellant.

Hasty Pope, Marion T. Pope, Jr., Gary M. Cooper, Terry D. Jackson, for appellees.

Freeman, Mathis & Gary, Sun S. Choy, amicus curiae.

Judgment reversed.

Doyle, P. J., and Andrews, P. J., concur.

       The waiver is $100,000 for incidents occurring on or after January 1, 2005, and until December 31, 2006; $250,000 for incidents occurring on or after January 1, 2007, and until December 31, 2007; and $500,000 for incidents occurring on or after January 1, 2008. OCGA § 36-92-2 (a) (l)-(3).

       This subsection anticipates that a local government may have multiple claims in a fiscal year, the total of which cannot exceed the funds set aside to pay those claims.


author: DOYLE, Presiding Judge.

text:
    A12A2308.
    BROWN v. THE STATE.
    (739 SE2d 118)
   DOYLE, Presiding Judge.

Stephaan Brown appeals from the denial of his motion for new trial following a conviction by a jury for a violation of the Georgia Racketeer Influenced and Corrupt Organizations (“RICO”) Act. He contends that (1) the trial court erred by admitting certain testimony over his objection as to relevance, and that the admission invaded the province of the jury, (2) the trial court committed plain error by failing to instruct the jury as to corroboration of accomplice testimony, (3) he received ineffective assistance of counsel, and (4) the evidence was insufficient to support the verdict. For reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that Brown worked as a plant manager at a KMM Telecommunications facility, which provides commercial grade telecommunications cable. As plant manager, Brown authorized overtime work for regular and temporary employees. On one occasion, employee Trevor Deveaux noticed on his paycheck extra overtime hours that he had not worked. He asked Brown about the discrepancy, and Brown replied that he would falsify unworked overtime on behalf of Deveaux if Deveaux would pay him a portion of the unworked overtime pay. Deveaux agreed to the arrangement for one pay period, but thereafter he asked Brown not to authorize any more unearned pay.

A temporary employee, Kevin Black, was also paid unearned overtime pay based on Brown’s falsification of records sent to Black’s temporary employment agency. As in the proposal to Deveaux, Brown instructed Black to put down extra time on his time sheet, and Brown would authorize it in return for a portion of Black’s unearned pay. Brown made the same arrangement with Tamika Dooley, another temporary employee hired by Brown. Brown unsuccessfully offered another employee, Tiffany Knighton, unworked overtime pay if she showed him her legs, and he offered at least one other employee unearned overtime pay, but the employee declined.

After Knighton complained and later resigned, Julie Buffington, KMM’s general counsel, conducted an investigation into the false overtime reports made by Brown. Based on the investigation, including interviews with Brown and other current and former KMM employees, Brown was terminated. A police investigation ensued, and Brown was charged with the RICO violation.

Brown was tried by a jury and convicted of one RICO violation based on the falsified overtime reports. He filed a motion for new trial, which was denied, giving rise to this appeal.

1. Brown contends that the trial court erred by overruling his objection to testimony by Buffington that Brown was terminated as a result of KMM’s investigation. Brown argues that this testimony was irrelevant and invaded the province of the jury. We review a trial court’s evidentiary rulings for an abuse of discretion, and we discern none here.

(a) Relevance. The challenged testimony essentially explained that KMM’s investigation led to Brown’s termination. The investigation arose from allegations by former employees who revealed the overtime fraud scheme. The indictment contained a narrative overview of the alleged conspiracy, which recounted Brown’s role in recruiting employees to falsify overtime hours in exchange for payment. Thus, KMM’s investigation into billing allegations and the ultimate termination of Brown for his involvement in these activities were circumstances that elucidated the factual allegations in the complaint.

Any evidence is relevant which logically tends to prove or disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant. [Because] Georgia law favors the admission of any relevant evidence no matter how slight its probative value, even evidence of questionable or doubtful relevancy or competency should be admitted and its weight left to the jurors.

Accordingly, the trial court did not abuse its discretion by finding the testimony relevant.

(b) Invading the province of the jury. “Georgia law generally precludes a witness from testifying as to his or her opinion regarding an ultimate issue in the case because to do so would invade the province of the jury.” Here, the witness did not give her opinion as to whether Brown was guilty of the allegations as alleged in the indictment; rather, she testified that Brown was terminated from his employment with KMM based on its investigation of him. Her description of the investigation primarily focused on Brown’s alleged sexual harassment and failure to adequately safeguard KMM’s inventory of copper wire. Brown’s trial counsel withdrew any objection as to the findings of KMM’s investigation, instead focusing his objection on any testimony that the criminal allegations pending against Brown were true. Trial counsel did renew his objection to Buffington’s statement that Brown had been terminated by KMM, but as noted by the trial court, that fact had already been presented by other witnesses (and later by Brown himself) without objection, so it was cumulative. Under these circumstances, there was no error in admitting the challenged evidence.

2. Brown contends that the trial court committed plain error by failing to sua sponte instruct the jury that corroboration is required if the only evidence of guilt is accomplice testimony. But “[a]s a rule, it is not error to fail to give a charge on corroboration of accomplices [if] the State relies upon other evidence apart from the accomplice’s testimony.” Thus, Brown’s argument is misplaced in this case because there was other evidence corroborating the incriminating testimony from Brown’s accomplices. At trial, the jury heard a recording of Brown telling a co-worker, “We can’t do overtime like we used to because everyone’s watching.” Also, a quality control worker who was not approached by Brown testified that he saw at least one other worker record unworked hours on a time sheet as part of Brown’s unearned overtime scheme. Based on this record, a jury instruction on accomplice testimony was not required, and Brown cannot demonstrate plain error.

3. Brown also argues that trial counsel was ineffective for the following reasons: (a) failing to object to a reference by Buffington to an e-mail sent by a deceased ex-employee, Willie Johnson, that was consistent with the e-mail sent by Knighton alerting Buffington to Brown’s improper acts; (b) failing to request a jury instruction on corroboration of accomplice testimony; (c) failing to object to the admission of voluminous time sheets; and (d) failing to analyze the time sheets.

Under Strickland v. Washington, to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. “There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case.” If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. In reviewing the trial court’s decision, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

(a) Failure to object to Johnson e-mail. At trial, Buffington testified about the events leading up to KMM’s internal investigation. She explained that based on Knighton’s e-mail accusing Brown of sexual harassment and mismanagement of resources, she convened a conference call to speak to Brown, his supervisor, and KMM’s controller. After the call, Buffington described her actions:

[W]e wanted to get to the bottom.... We needfed] to go back and get as much information as we can about this. So that’s what we did. We investigated and then before it even — before we even had done our investigation[,] we got the email with the complaint from Willie Johnson [who was deceased by the time of trial] . . . alleging very much the same stuff. Nothing about sexual harassment.

At that point, Brown argues that his trial counsel should have objected because Johnson was deceased and not available for cross-examination. Brown points out that his trial counsel had successfully moved in limine to exclude Johnson’s e-mail on that ground. But the actual e-mail itself remained excluded, and there were other earlier references to the existence of Johnson’s e-mail at trial that are not challenged on appeal. KMM’s controller had already testified, without objection at trial or challenge on appeal, that Johnson’s e-mail had led to KMM’s investigation. Brown’s trial counsel used Johnson’s e-mail to cross-examine the controller and later Knighton about the timing of Knighton’s e-mail relative to Johnson’s termination, suggesting a relationship or collusion between Knighton and Johnson. Therefore, the brief reference by Buffington was cumulative of other evidence, and Brown cannot meet his burden to show prejudice under Strickland.

(b) Failure to request jury instruction on the requirement for corroboration of accomplice testimony. As explained in Division 2, the evidence did not require an instruction on accomplice testimony, so failing to request one does not support Brown’s ineffective assistance claim.

(c) Failure to object to the admission of time sheets. At trial, the State introduced several hundred pages of time sheets from employees. Brown now contends that his trial counsel should have objected because they were unorganized and indecipherable, and therefore irrelevant. Pretermitting whether this argument shows any harm from their admission, Brown’s counsel testified at the motion for new trial hearing that he did not make a substantive objection because he believed they were helpful:

My recollection is that we actually wanted the records to come in, that having reviewed the records [,] we were convinced that there were enough inconsistencies in them, and that there were enough contradictions in the records themselves with the testimony of the other witnesses that would work to our benefit. ... I remember thinking that it wasn’t a bad thing if they came in because there was a way they could be beneficial to us.
[L]et me be clear. They were hundreds of pages of records and there were hundreds of pages of time records, but there were only a few of them that were actually referenced at trial[,] and those were tabbed that were referenced and were referred to in closing arguments. They were relevant to the testimony that had come forth, and I certainly thought that the jury would have been sophisticated enough to look at those that we pointed out and that would have worked to our benefit.

In light of this testimony, Brown’s argument fails because trial counsel’s conduct was in pursuit of a reasonable, informed trial strategy. The inquiry in an ineffective assistance claim “focuses on the reasonableness of counsel’s conduct from counsel’s perspective at the time of trial. Thus, the [appellate] courts will not second-guess counsel’s decisions concerning matters of trial strategy and tactics.” Accordingly, Brown has failed to show deficient performance on this ground.

(d) Failure to adequately analyze the time sheets. Brown further contends that his trial counsel performed deficiently by inadequately analyzing the time sheets and summarizing them for the jury. Nevertheless, as explained by the testimony above, the evidence supports a finding that Brown’s trial counsel did analyze the time sheets and found the tabbed references adequate to make his case to the jury.

Although [Brown’s] current counsel may not agree with that strategy[,] and even his trial attorney may have rethought [his] earlier decision, this Court does not evaluate effectiveness of trial counsel by hindsight or by what present counsel would have done. [Brown] failed to show that his counsel’s performance was deficient under the criteria set out in Strickland v. Washington. A defendant is entitled not to perfect representation but to reasonably effective assistance.

Decided March 20, 2013

Reconsideration denied April 3, 2013.

Alixe E. Steinmetz, for appellant.

Robert D. James, Jr., District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

4. Last, Brown contends that the evidence failed to support the guilty verdict. When reviewing the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to'be considered in the light most favorable to the prosecution.

Under this standard, the evidence sufficed to support a finding that Brown conspired with other employees to falsify their overtime records in exchange for payment by them. There was direct evidence of Brown’s unlawful acts, corroborated by nonaccomplice witnesses, as well as a recording of Brown’s own incriminating statement. Any inconsistencies in the evidence were for the jury to resolve. Accordingly, this enumeration is without merit.

Judgment affirmed.

Andrews, P. J., and Boggs, J., concur.

       See OCGA § 16-14-4 (a).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). Brown was indicted with a second violation based on theft and resale of copper wire, but he was found not guilty of that count.

       See Smith v. State, 284 Ga. 304, 306 (3) (667 SE2d 65) (2008).

       (Punctuation omitted.) Black v. State, 305 Ga. App. 903, 906 (3) (700 SE2d 892) (2010).

       (Punctuation omitted.) Windhom v. State, 315 Ga. App. 855, 859 (2) (729 SE2d 25) (2012).

       See OCGA § 17-8-58 (b) (“Failure to [specifically] object [to a jury charge pursuant to subsection (a)] shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties.”).

       See OCGA § 24-4-8 (2010).

       (Punctuation omitted.) Laing v. State, 304 Ga. App. 15, 18 (2) (695 SE2d 363) (2010).

       Our courts have "defined ‘plain error’ as ‘that which is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice’ or which ‘seriously affects the fairness, integrity!,] or public reputation of a judicial proceeding.’ ” (Punctuation omitted.) State v. Kelly, 290 Ga. 29, 32-33 (2) (a) (718 SE2d 232) (2011).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       See id. at 687-688, 694 (III) (A)-(B).

       (Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004).

       See Strickland, supra, 466 U. S. at 697 (IV); Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).

       (Punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

        See Allen v. State, 286 Ga. App. 469, 474 (2) (a) (649 SE2d 583) (2007).

       See Porter v. State, 292 Ga. 292, 294 (3) (a) (736 SE2d 409) (2013) (“counsel’s failure to make a meritless objection cannot constitute evidence of ineffective assistance”).

       (Punctuation omitted.) Smith v. State, 261 Ga. App. 25, 27 (3) (581 SE2d 673) (2003).

       (Citation and punctuation omitted.) Smith v. State, 306 Ga. App. 693, 701 (3) (703 SE2d 329) (2010).

       (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       See Vega v. State, 285 Ga. 32, 33 (1) (673 SE2d 223) (2009).


text:
    A12A2443.
    GARNER AND GLOVER COMPANY v. BARRETT et al.
    (738 SE2d 721)
   Boggs, Judge.

In this interlocutory appeal, Garner and Glover Company (“Garner”), an insurance producer, contends it was entitled to summary judgment in its favor because (1) it owed no duty to notify an excess insurance carrier of a claim on behalf of an additional insured, Atlanta Gas Light Company (“AGL”); and (2) the underlying plaintiffs cannot file a direct action against it based upon a settlement with and assignment from AGL. For the reasons explained below, we reverse.

“On appeal from the grant or denial of summary judgment, we apply a de novo standard of review.” (Citation omitted.) Coca-Cola Bottlers’ Sales & Svcs. Co. v. Novelis Corp., 311 Ga. App. 161 (715 SE2d 692) (2011). “[T]he moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” (Punctuation omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); see also OCGA § 9-11-56 (c). So viewed, the record shows that Garner assisted its client, Coosa Valley Contractors, Inc., with the procurement of two policies of insurance that named AGL as an additional insured: a $1 million general liability policy with Valley Forge Insurance Company (“CNA”) and a $1 million commercial umbrella excess liability policy with National Union Insurance Company (“National”).

On July 19, 2003, an AGL claims administrator, Carolyn Strickland, sent a Garner employee, Hannah Chambley, the following letter via fax:

I am writing to notify you of a complaint with which we were served on July 1, 2003. We are an additional insured on policy number C144164548 with Garner & Glover Company for all occurrences between July 1, 2001 and July 1, 2002 (“Policy”). Accordingly, this is a request for coverage under the Policy. The Company hereby tenders defense to Garner & Glover.

Included with the letter were the complaint filed against AGL by the Barretts and a copy of the certificate of insurance issued to Coosa Valley Contractors. The attached complaint prayed for damages of $10 million. After learning from Chambley that the general liability carrier was CNA, Strickland sent a copy of the complaint directly to CNA. In response to Strickland’s letter, Chambley also forwarded it to CNA.

The certificate of insurance included with Strickland’s letter shows that the policy number listed in her letter corresponds with the general liability policy issued by CNA; the excess policy insurance number was also listed on the same page of the certificate. Strickland testified that she referenced only the general liability policy number in her letter because “[t]hat’s all [she] ever did.” Although she admitted that she did not ask Garner to notify all insurance carriers of the claim, it was her expectation that Garner would notify the excess carrier. She could not explain the basis for this expectation, testifying “I just know I had to put [Garner] on notice to keep us out of default, and notifying the excess carrier, I never did. I guess the supervisor did that.” She testified that she did not know “what else [her] supervisor would do in that capacity, if it was to reach more than what was covered under general liability.” She also admitted that she had no experience with any insurance producer notifying an excess carrier.

Before sending the July 19, 2003 letter, Strickland had had no dealings with Garner or its employees. She explained that when AGL received a claim involving a contractor generally, it would pull the certificate of insurance on file and contact the insurance producer listed on the form because AGL was usually listed as an additional insured on the certificate of insurance. She explained that sometimes she would obtain information from the producer to notify the insurance carrier herself, and sometimes the producer would notify the insurance carrier for her. She did not read the complaint before she forwarded it to Garner.

Chambley, the Garner employee, testified that she did not read the complaint attached to Strickland’s letter. She agreed that it would have been “CNA’s decision whether to notify the excess carrier.” The principals of Garner testified that the agency did not automatically notify excess insurance carriers in all cases. They testified that typically, the adjuster handling the underlying policy claim would make the decision about whether the excess insurance carrier should be notified after investigating the facts of the particular claim. They explained that notifying the excess insurance carrier of any and all claims could harm the interest of the named insured and agency client during policy renewal with regard to premiums.

In this case, Garner notified the excess carrier, National, in September 2007 when the CNAadjuster handling the claim requested that it do so. National subsequently denied coverage, in part, based upon AGL’s failure to notify it “as soon as practicable” after a suit was brought against it that was “reasonably likely to involve” the excess policy. AGL subsequently agreed to a $2 million consent judgment in exchange for the Barretts’ agreement not to enforce it against AGL. The consideration for the Barretts’ agreement included the assignment of AGL’s claims against National and Garner to the Barretts in addition to CNA’s payment of its $1 million policy limits.

The Barretts, as assignees of AGL, filed suit against National and Garner to collect the remaining $1 million and an additional $500,000 in attorney fees and bad faith penalties. After this court determined that a pollution exclusion did not bar coverage under National’s policy, the Barretts settled with National for $800,000 and dismissed National from the suit. Garner moved for summary judgment, and the trial court denied the motion based upon its conclusion that “there is at least an issue of fact as to whether [Garner] should have notified National.”

Garner contends that the trial court erred by finding an issue of fact regarding whether it breached a duty to notify the excess carrier on behalf of AGL because it owed no such duty. After examining Georgia law regarding duties owed to additional insureds by an insurance producer, we agree.

The Barretts point to no case law in Georgia, or from any other jurisdiction, directly addressing the scope of any duty owed by an insurance producer to notify an excess insurance carrier on behalf of an additional insured. In support of their claim, they rely upon their expert’s affidavit asserting that such a duty existed under the particular facts of this case and the law regarding the voluntary assumption of a duty generally. While there is no Georgia law addressing this particular issue, Garner relies upon an analogous case addressing whether an insurance agent may be liable to an additional insured for failing to procure a policy. See Workman v. McNeal Agency, 217 Ga. App. 686 (458 SE2d 707) (1995).

In Workman, we held that an additional insured could not assert claims for breach of contract and negligence when an insurance agent did not procure insurance continuing her coverage on the property leased by the named insured and client of the insurance agency. Id. We reasoned that because the defendant “was not [the plaintiff’s] insurance agent, it had no duty to obtain insurance for her property, list her as an additional named insured, or to advise her that it had not done so.” Id. at 688 (2). We conclude that this reasoning should also apply to a claim that an insurance producer owes a duty to notify an excess carrier on behalf of an additional insured based solely upon its status as an additional insured under the policy. We find no merit in the Barretts’ claim that their expert’s affidavit can create a genuine issue of material fact as to whether a legal duty was owed. The “existence of a legal duty is a question of law for the court.” (Citation omitted.) Rasnick v. Krishna Hospitality, 289 Ga. 565, 567 (713 SE2d 835) (2011). Therefore, an expert “affidavit does not, and cannot, create a legal duty where none existed before.” McGarrah v. Posig, 280 Ga. App. 808, 811 (635 SE2d 219) (2006).

We recognize, however, that in certain cases, a duty that might not otherwise exist can be created through a voluntary undertaking. See, e.g., Huggins v. Aetna Cas. & Surety Co., 245 Ga. 248, 249 (264 SE2d 191) (1980). Under Section 324A of the Restatement (Second) of Torts:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

See also Huggins, supra. In this case, however, the record cannot support a conclusion that Garner undertook a duty to notify excess carriers on behalf of AGL. As requested by AGL, Garner notified the insurance carrier of the policy identified in Strickland’s letter. While Strickland may have subjectively believed that Garner would also notify the excess insurance carrier, this belief was not communicated to Garner. And no prior conduct by Garner could have created a reasonable expectation that it would do so, because Strickland had never dealt with Garner on any claim before. At most, the record shows that Garner undertook a duty to notify the general liability insurance carrier, a duty which it performed without negligence. See Guideone Mut. Ins. Co. v. Hunter, 286 Ga. App. 852, 855 (650 SE2d 424) (2007) (insurer did not assume duty to advise homeowner on necessary extent of repairs based upon its inspection of property to determine the amount owed under the policy for a loss).

Decided March 14, 2013

Reconsideration denied April 3, 2013

Owen, Gleaton, Egan, Jones & Sweeney, Charles J. Cole, Derrick L. Bingham, for appellant.

Akin & Tate, William M. Akin, S. Lester Tate III, for appellees.

Hawkins, Parnell, Thackston & Young, Brenton S. Bean, amicus curiae.

Because the trial court erred by concluding that a genuine issue of material fact exists as to whether Garner breached a duty to notify the excess insurance carrier, we reverse.

Judgment reversed.

Doyle, P. J., and Andrews, P. J., concur.

        Barrett v. Nat. Union Fire Ins. Co., 304 Ga. App. 314 (696 SE2d 326) (2010).

       The Supreme Court of Georgia’s opinion in Layfield v. Dept. of Transp., 280 Ga. 848 (632 SE2d 135) (2006), does not require a different result. In Lay field, the Supreme Court addressed whether an expert affidavit could create a genuine issue of fact with regard to proximate cause, not whether a legal duty was owed by the defendant. Id. at 849-852 (2).


text:
    A12A2534.
    TURNER v. WILLIAMSON et al.
    (738 SE2d 712)
   Boggs, Judge.

Following a jury verdict against him in this wrongful death action, Dylan Turner appeals, contending that the trial court erred by denying his motion to enforce a policy limits settlement in the amount of $25,000. For the reasons explained below, we reverse.

“A trial court’s order on a motion to enforce a settlement agreement based on undisputed facts is subject to de novo review.” (Citation, punctuation and footnote omitted.) Mealer v. Kennedy, 290 Ga. App. 432 (659 SE2d 809) (2008). In this case, the undisputed facts show that 15-year-old Zachary Williamson died on August 14, 2010, when Turner’s vehicle crossed the centerline and collided with a vehicle in which Williamson was a passenger. On December 8, 2010, a claims handler with Turner’s insurer, USAA Casualty Insurance Company (“USAA CIC”), sent a letter to Williamson’s parents at their home address, “offering [Turner’s] bodily injury liability limits of $25,000” and indicating, “I need you to sign the attached] release and a copy of the death certificate before payment can be issued.” A two-page form titled “Georgia Limited Release Pursuant to O.C.G.A. Section 33-24-41.1” was attached to the letter. In addition to the language required by OCGA § 33-24-41.1, the release also included the following provisions:

IT BEING FURTHER AGREED AND UNDERSTOOD that this settlement is a compromise of a disputed claim and that the payment is not to be construed as an admission on the part of the party or parties hereby released of any liability whatsoever in consequence of said accident.
The claimant(s) warrant and represent to the insurer that there are no medical or hospital liens, or expenses for which the Releasees may be held liable under O.C.G.A. § 44-14-470 (et seq.), or under O.C.G.A. § 49-4-148 or 49-4-149 or any other law or statute; but in the event any claims are asserted against the insurer for such medical expenses by any person, firm, or corporation, authority, governmental agency or other entity on account of any hospital or medical treatment rendered to the claimant by reason of the incident referred to herein, the claimant(s) will hold harmless, defend and indemnify the insurer from all such claims and for any amounts the insurer is required to pay therein, including any and all attorney fees incurred in the defense of the insurer against said claims.

The claims handler did not receive a response from the Williamsons until January 4, 2011, when the Williamsons’ attorney sent USAA CIC a letter stating in its entirety: “My clients, Mark and Renee Williamson, have authorized me to make a demand in this. My clients will execute a limited liability release in accordance with O.C.G.A. § 33-24-41.1 in exchange for USAA’s policy limits of $25,000. This offer shall remain open until Friday, January 14, 2011.”

On January 13, 2011, the claims handler called the Williamsons’ attorney but was unable to speak with him. She advised the attorney’s secretary that “the same offer had been extended by USAA CIC on December 8, 2010” and told her that “this was acceptable to USAA CIC and that I would issue the check to the estate and send a Limited Liability Release for the clients’ signature.” In the claims handler’s opinion, a settlement had then been reached. On the same date, she sent two letters to the attorney regarding the settlement. In one letter, she wrote:

I am in receipt of your letter of 1/4/2011, wherein you demand our insured’s policy limits. Please be advised that USAA offered our insured’s policy limits of $25,000 to your clients back on 12/8/10. Please be advise[d] that I will be issuing the check and release to the Estate of Zachary Williamson and your law firm unless you advise differently. Please also, fax a copy of the death certificate. You may submit correspondence or questions to me.

In the second letter, she confirmed that the parties had “settled the claim.” She requested that his clients “please” sign the included release form in front of witnesses and return it, along with the attorney’s tax identification number for reporting purposes. The included release was identical to the one previously sent by the claims handler directly to the Williamsons on December 8, 2010.

On January 21, 2011, the Williamsons’ attorney wrote to the claims handler and informed her, “I received your letter dated January 13, 2011. I have discussed the contents of your letter with my clients, as well as the Release. My clients have instructed me to reject your counteroffer. If you have any questions regarding the foregoing, call me.” The claims handler received this letter on February 1, 2011. On the same day, the claims handler sent another letter to the Williamsons’ attorney confirming that they had “reached an amicable resolution” of the claim which included a different more abbreviated release that made no reference to OCGA § 33-24-41.1.

The claims handler made repeated attempts to speak with the attorney by telephone about the settlement, but was unsuccessful until February 25, 2011, ten days after Turner had been served with a lawsuit filed by the Williamsons. In this conversation, the attorney informed the claims handler for the first time that “a settlement had not been reached because a limited liability release had not been sent to his clients, but instead a ‘final’ release had been sent.” He also informed her “that suit had been filed and the case was to be litigated.”

Turner subsequently filed a motion to enforce the parties’ settlement agreement, which the trial court denied. In its order, the court concluded that there had been “no meeting of the minds as to all essential terms,” and therefore no enforceable agreement existed.

On appeal, Turner contends that a settlement agreement was reached between the parties either when (1) the attorney’s January 4, 2011 letter accepted USAA CIC’s December 8, 2010 offer or (2) USAA CIC accepted the Williamsons’ January 4, 2011 offer on January 13, 2011. According to Turner, the terms of the release were a payment of $25,000 and execution of a limited liability release. The Williamsons respond that they did not agree to sign the release provided by USAA CIC that included provisions denying the liability of the driver “who killed their son” as well as indemnification for medical and hospital liens and any attorney fees and litigation costs incurred by USAA CIC.

In deciding whether the parties entered into an enforceable settlement agreement, we are governed by well-established principles. Compromises of doubtful rights are upheld by general policy, as tending to prevent litigation, in all enlightened systems of jurisprudence. In considering the enforceability of an alleged settlement agreement, however, a trial court is obviously limited to those terms upon which the parties themselves have mutually agreed. Absent such mutual agreement, there is no enforceable contract as between the parties. It is the duty of courts to construe and enforce contracts as made, and not to make them for the parties.

(Citation and punctuation omitted.) Hearn v. Dollar Rent A Car, 315 Ga. App. 164, 169-170 (1) (c) (726 SE2d 661) (2012). “[Settlement agreements must meet the same requirements of formation and enforceability as other contracts.” (Citation and footnote omitted.) Torres v. Elkin, 317 Ga. App. 135, 141 (2) (730 SE2d 518) (2012).

An answer to an offer will not amount to an acceptance, so as to result in a contract, unless it is unconditional and identical with the terms of the offer. To constitute a contract, the offer must be accepted unequivocally and without variance of any sort. Apurported acceptance of a plaintiffs settlement offer which imposes conditions will be construed as a counteroffer to the offer to settle for the [insurance] policy limits.

(Citation and punctuation omitted.) Frickey v. Jones, 280 Ga. 573, 574 (630 SE2d 374) (2006). See also McReynolds v. Krebs, 290 Ga. 850, 853 (2) (725 SE2d 584) (2012). When determining whether a purported acceptance imposes conditions rendering it a counter-offer, our courts have drawn a distinction for “precatory words.” See Torres, supra, 317 Ga. App. at 141 (2); Pourreza v. Teel Appraisals &c., 273 Ga. App. 880, 883 (616 SE2d 108) (2005); Herring v. Dunning, 213 Ga. App. 695, 699 (446 SE2d 199) (1994). “Precatory words are words whose ordinary significance imports entreaty, recommendation, or expectation rather than mandatory direction.” (Citation and punctuation omitted.) Herring, supra.

1. Applying these principles to the facts before us, we conclude that the attorney’s January 4 letter did not accept USAA CIC’s December 8 offer. The offer conditioned acceptance upon receipt of the executed release form provided with the offer letter. While the release may have been titled “Georgia Limited Release Pursuant to O.C.G.A. § 33-24-41.1,” it contained additional substantive provisions not related to that statute. Additionally, the offer letter did not characterize the contents or subject of the release in any way. Therefore, the January 4 letter proposing a settlement based upon execution of a limited liability release under the statute in exchange for the $25,000 policy limits cannot be construed as an unequivocal acceptance of all of the terms of the December 8 offer because it did not contain identical terms.

2. This is not the end of our inquiry, however, as we must now consider whether USAA CIC accepted the Williamsons’ January 4 offer. The terms of this offer were simple: execution of a limited liability release in accordance with OCGA § 33-24-41.1 in exchange for the policy limits. The claims handler’s written and oral communications in response demonstrate an unequivocal acceptance of both of these terms, and they contained no language conditioning acceptance upon execution of the particular release form she provided with her second letter. While the release provided may have included additional terms not acceptable to the Williamsons, it is well settled that the mere inclusion of a release form unacceptable to the plaintiff does not alter the fact that a meeting of the minds had occurred with regard to the terms of the settlement. See Smith v. Hall, 311 Ga. App. 99, 101-102 (714 SE2d 742) (2011); Baldwin v. Adams, 306 Ga. App. 104, 105 (701 SE2d 577) (2010); Mealer, supra, 290 Ga. App. at 436-437; Herring, supra, 213 Ga. App. at 699. Compare McReynolds, supra, 290 Ga. at 853-854 (2) (purported acceptance letter imposed additional condition of lien resolution as part of settlement); Frickey, supra, 280 Ga. at 575-576 (purported acceptance letter conditioned settlement upon resolution of medical liens not mentioned in offer); Torres, supra, 317 Ga. App. at 142-143 (2) (acceptance letter included conditional language requiring satisfaction of liens); Anderson v. Benton, 295 Ga. App. 851, 855 (1) (673 SE2d 338) (2009) (purported acceptance expressly contingent upon execution of included release as part of settlement); Wyatt v. House, 287 Ga. App. 739, 741-742 (3) (652 SE2d 627) (2007) (purported acceptance expressly required release that varied from release specified in offer), overruled on other grounds, Ragan v. Mallow, 319 Ga. App. 443 (744 SE2d 337) (2012). As we observed in Herring, supra,

Decided February 28, 2013

Reconsideration denied April 3, 2013

Carlock, Copeland & Stair, Douglas W. Smith, Hillary A. Shawkat, for appellant.

Temple, Strickland, Dinges & Schwartz, Jason B. Schwartz, Lance A. Cooper, for appellees.

the presentation of a proper release in a form acceptable to plaintiff may have been a condition of defendant’s performance but it was not an act necessary to acceptance of plaintiff’s offer to settle for the policy limits. Moreover, since the agreement to terminate the controversy already had been created, the defendant’s subsequent proffer of a release form which plaintiff believed was not in compliance with the understanding of the parties would not be a rejection of the previously accepted offer.

(Citations omitted.) 213 Ga. App. at 699-700. USAA CIC’s request that the Williamsons “please” sign the included release in conjunction with its statement that the $25,000 settlement check would be sent under separate cover did not impose a new condition on the settlement. Instead, it included precatory words rather than mandatory direction. Herring, supra. We therefore conclude that the trial court erred by denying USAA CIC’s motion to enforce the settlement.

Judgment reversed.

Doyle, R J., and Andrews, P. J., concur.

       This Code section provides for a limited release when a motor vehicle accident is covered hy two or more insurance carriers.

       This release appears to have errors as it required the insured, Dylan Turner, to sign it in exchange for payment of $25,000 due to him under the policy.

       The second letter enclosing the release requested that the client “please” sign the release and noted that the check for $25,000 would be sent “under separate cover.” The first letter merely advised that a release would be issued.