author: Boggs, Judge.

text:
    A15A0042, A15A1610.
    BLACK v. BLAND FARMS, LLC.
    (774 SE2d 722)
   Boggs, Judge.

In Case No. A15A0042, Gary Black, in his official capacity as the Georgia Commissioner of Agriculture (“the Commissioner”), appeals from a trial court ruling declaring a new Vidalia onion packing regulation invalid. The Commissioner contends that the plaintiff, Bland Farms, LLC, did not demonstrate that it had standing to bring the action, and that the new regulation was a valid one. For the following reasons, we agree with the trial court that Bland Farms has standing to bring a declaratory judgment action, but hold that the packing regulation was a valid exercise of the Commissioner’s authority pursuant to the Vidalia Onion Act, OCGA § 2-14-130 et seq. We therefore affirm in part and reverse in part in Case No. A15A0042. Case No. A15A1610 is dismissed as moot.

In 1986, the Georgia General Assembly enacted the Vidalia Onion Act, OCGA § 2-14-130. Use of the term “Vidalia” is prescribed by OCGA § 2-14-132:

Only onions which are of the Vidalia onion variety and which are grown within the Vidalia onion production area maybe identified, classified, packaged, labeled, or otherwise designated for sale inside or outside this state as Vidalia onions. The term “Vidalia” may be used in connection with the labeling, packaging, classifying, or identifying of onions for sale inside or outside this state only if the onions are of the Vidalia onion variety and are grown in the Vidalia onion production area.

The Commissioner averred: “In 1990, the State of Georgia, through the Department of Agriculture, applied for the U. S. certification mark ‘Vidalia®,’ and the mark was registered with the U. S. Patent and Trademark Office on August 19, 1992.” In 2000, the legislature amended the Vidalia Onion Act to provide that “[t]he Commissioner of Agriculture is authorized to take all actions necessary and appropriate” to promote and protect that trademark “for use on or in connection with the sale or promotion of Vidalia onions and products containing Vidalia onions.” OCGA § 2-14-132.1.

Within the past few years, however, the Georgia Department of Agriculture (“the Department”)

received a large number of complaints from consumers unhappy with the quality of Vidalia® onions on the store’s shelves .... Decreased consumer confidence could ultimately lead to reduced demand for Vidalia® onions and the potential for long-term adverse economic impacts on Georgia’s Vidalia® onion industry.

The Commissioner stated further:

The Vidalia® onion industry has faced a serious quality control problem caused in large part because Vidalia® onions are being harvested prematurely. Vidalia® onions are typically planted in the fall season and are rarely ready to be harvested before mid-April. The Vidalia® onion needs time in the soil to fully mature and develop the sweet flavor and other characteristics for which it is known. Some Vidalia® growers, in an attempt to beat their competitors to fill store shelves with sweet onions, have shipped onions under the Vidalia® trademark that were harvested too soon and of poor quality, with diminished shelf life. This practice has diminished consumer confidence in Vidalia® onions.

In order to address these concerns, on June 27,2013, the Department sent a “Notice of Intent to Consider Amendments to certain rules pertaining to the Georgia Vidalia Onion Act” to all interested persons and parties. The notice invited written comments that would be considered at a public hearing to be held on July 30, 2013. The Commissioner proposed to promulgate a regulation that would establish a “packing date” before which no onion could be packed as a Vidalia onion:

Packing precedes shipping, and by setting an appropriate April deadline before which no Vidalia® onion could be packed, much less shipped, the packing date would have the salutary effect of requiring growers to keep the onions in the soil for a longer period of time and provide more time for curing the onions.

Prior to the July 2013 hearing, the Commissioner received letters in support of the proposed regulation. One grower explained:

Growers and shippers want to be first to market to extend their season and capitalize on this draw factor. As shippers, we are all pressured to ship early onions based on factors unrelated to the crop itself. Often times, a retailer’s advertising calendar is set weeks in advance without any confirmation the crop will be mature and ready to ship. It is difficult to say “no” to a retailer and hope the business will return the following week. The establishment of a pack date using the proposed guidelines will not only reduce the quantity of immature onions on the market, but more importantly it will increase the probability the crop as a whole has matured to a marketable condition ....
In early March of 2013, the crop appeared to be maturing early due to a warm December and January. Speculation began that Vidalia onions would be ready to ship by early April. Then the weather turned cool and damp by mid-March. The crop stalled and did very little maturing over the last two weeks of March. As April arrived, the tops of the onions refused to fall, indicating that they were not ready for harvest. As the impending promised ship dates approached, we were faced without a good option except to proceed with prior shipping commitments. As a result, most Vidalia onions that were shipped in early to mid April were immature, soft, and discolored.... Word in the market was, “What is wrong with the Vidalia’s this year?” and “They look horrible.” The poor quality and appearance of the onions caused retail sales to stall and eventually caused markets to fall....
Texas has proven that they can produce a mild, good quality, granex type onion. When we in the Vidalia go to market early, our product does not have the curb appeal of the well-cured, quality granex onion from Texas. This encourages retail customers to stay with Texas until Vidalia is more mature ....
Labor is often scheduled to arrive in early April because the industry wants to be ready when the crop is ready. Often though, the labor is paid to stay out of the fields while we wait for the crop to mature. If the grower waits on the crop, the labor bill rises. If the grower takes the crop prematurely to reduce his labor exposure, the quality of the product shipped is compromised. I believe that as an industry, we could save money on labor by knowing when the season starts.

A second grower explained in a letter to the Commissioner that “[t]he poor quality of these early onions was one significant contributing factor to the poor demand for Vidalia onions this year.” Another grower noted in his letter that a pack date may not be “the answer, but it is likely the best answer to our industry concerns.” (Emphasis in original.) He explained:

We’ve taken a May/June fresh market and forced it into an April/May market — akin to forcing a square peg into a round hole. By bowing to the demand of buyers who “won’t get beat” regarding first to market, we’ve done ourselves and the consumer a disservice by placing an inferior product on the market in those first weeks of shipping... we saw untold receivers leave Vidalia® before we got started good, to return to Texas.

Representatives from several onion farms attended the July 2013 meeting, including representatives from Bland Farms. Counsel for Bland Farms expressed strong opposition to the proposed rule change on grounds that such a change “can only be done by the legislature” and would alter the current shipping date set forth in OCGA § 2-14-136. Several other onion growers testified that they were in favor of the proposed regulation because they felt it was needed to protect the Vidalia brand. One grower explained that immature onions are “jeopardizing our industry.” Another grower testified:

Our industry has suffered the last few years ... as a result of onions being put on the market early that were immature, that were dug premature____And I think we have much better varieties. Our industry was founded on the traditional Vidalia varieties, not the early varieties — the shape, the taste, the shelf life____Inspection service is great and I think there’s something to be said for our inspection service. But going about it of fixing our problem with only a more strict inspection service I don’t think is going to work. Number one, the manpower. To inspect every load that gets shipped out of the industry, we don’t have the manpower for that .... Keep in mind that a lot of our onions that were shipped this year, that were shipped prior to the 15th, which is our set opening date, were inspected; they passed an inspection. And you can make these onions pass inspection, but once they get on the shelf, they don’t have any shelf life.

A third grower testified:

I’ve been growing onions 50-plus years, and there’s been more damage done to the Vidalia name recognition of the onion in the last few years by planting all these early-variety onions that are not what fall in the category of what I consider a true Vidalia onion. We built this name of the Vidalia onion on a good, true onion that is sweet, has good shelf life, and what’s been hitting the market early in the past few years has not been the true Vidalia onions .... Breeders are breeding onions that come off 30 days early. They might come off 30 days earlier but they’re not the true Vidalia nature of the onion. They’re not sweet, they’re not mild, you have aftertaste, and they do not last .... We’re rushing the onions; we’re growing them too fast, trying to get to market premature and shipping them premature. We don’t allow them to dry; we don’t allow them to cure in the fields. It’s just amazing how much has changed from where we first started If something’s not done, then we can just as well mark off the word Vidalia onions. If somebody wants to grow onions and sell onions and want to put that junk on the market, put it under their name, not under the Vidalia name; because I’m proud of the Vidalia name and I’d like — for my children and future generations, I’d like to protect it.

A fourth grower was reluctant to agree that a packing date would solve the problem:

Shelf life is one of the biggest problems we have .... [T]he problem that we have is we’ve got an inferior product, whether we mandate a date that we can ship it or whether we mandate a date when we can pack it, it really doesn’t matter. If it’s a crappy product, that’s what it’s going to be whenever it gets there.

But he stated further that “if putting [a] packing date makes it that much better, I’m all for it.”

Following the hearing, on August 7, 2013, the Commissioner sent a letter to “Vidalia Onion License Holders” with the new regulation attached, effective August 28, 2013, giving the Commissioner authorization “to determine and announce a packing date each year for the Vidalia Onion®,” i.e., the “packing date rule.” See Ga. Comp. R. & Regs. r. 40-7-8-.17. The letter noted that the Department had “conducted several listening sessions in recent months to discuss potential solutions to the quality issues faced by the Vidalia Onion industry.” The Commissioner explained that while some growers voiced opposition to the packing date rule and asked the Department to urge the “Georgia Federal-State Inspection Service” to provide more rigorous inspection during the season, his department had “no authority to strengthen the regulations above U.S. #1.” He explained further that he “evaluated the costs and required training associated with adding a projected 60 inspectors,” but saw “no wisdom in passing this cost on to producers.”

On September 23, 2013, Bland Farms filed a “Complaint for Declaratory Judgment and Injunctive Relief” asserting that the Commissioner promulgated a new regulation that conflicted with the Georgia Vidalia Onion Act. Specifically, Bland Farms asserted that the new regulation replaced “shipping date” with “packing date,” thereby establishing a fixed date on which Vidalia onions may first be packed and shipped, in direct contravention of the Act.

The Commissioner filed an answer, as well as a motion to dismiss the complaint and a motion for summary judgment. Bland Farms moved for judgment on the pleadings. Following a hearing, the trial court denied the Commissioner’s motion to dismiss, finding that Bland Farms had standing to seek a declaratory judgment. The court denied the Commissioner’s motion for summary judgment and granted Bland Farms’ motion for judgment on the pleadings, finding that the Commissioner exceeded the scope of his authority in adopting a regulation that abolishes the term “ship date” in OCGA § 2-14-136. It is from this order that the Commissioner appeals.

On appeal from the grant of judgment on the pleadings, “we conduct a de novo review of the trial court’s order to determine whether the undisputed facts appearing from the pleadings entitle the movant to judgment as a matter of law.” (Citation, punctuation and footnote omitted.) Hall v. Sencore, Inc., 302 Ga. App. 367 (691 SE2d 266) (2010). This court also conducts a de novo review from the trial court’s denial of a motion for summary judgment. Johnson v. Omondi, 294 Ga. 74, 76 (751 SE2d 288) (2013). “Aparty is entitled to summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).” (Citation omitted.) Id. at 75.

1. We first address the Commissioner’s assertion that Bland Farms lacks standing to bring an action for declaratory judgment, and that therefore, sovereign immunity has not been waived.

The State’s sovereign immunity has been specifically waived by the General Assembly pursuant to OCGA § 50-13-10, which is part of the Administrative Procedure Act. Therein, the State has specifically consented to be sued and has explicitly waived its sovereign immunity as to declaratory judgment actions in which the rules of its agencies are challenged.

(Citations, punctuation and footnotes omitted.) DeKalb County School District v. Gold, 318 Ga. App. 633, 637 (1) (a) (734 SE2d 466) (2012). “Actions for declaratory judgment provided for in this Code section shall be in accordance with Chapter 4 of Title 9, relating to declaratory judgments.” OCGA § 50-13-10 (c). Subsection (a) of OCGA § 9-4-2 provides:

In cases of actual controversy, the respective superior courts of this state shall have power, upon petition or other appropriate pleading, to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed; and the declaration shall have the force and effect of a final judgment or decree and be reviewable as such.

And

[w]e must construe the declaratory judgment statute liberally. The statute is available in situations presenting an “actual controversy’ where interested parties are asserting adverse claims upon a state of facts wherein a legal judgment is sought that would control or direct future action.

(Citations and punctuation omitted.) In re Doe, 262 Ga. 389, 390 (1) (418 SE2d 3) (1992). Moreover, “[i]n order to challenge a statute or an administrative action taken pursuant to a statute, the plaintiff must normally show that it has interests or rights which are or will be affected by the statute or the action.” (Citations and punctuation omitted; emphasis in original.) Atlanta Taxicab Co. Owners Assn. v. City of Atlanta, 281 Ga. 342, 345 (2) (638 SE2d 307) (2006).

The Commissioner argues that Bland Farms does not have standing because it is “not walking in the dark and risking ‘undirected action’stemming from a state of uncertainty. ... [Bland Farms] understands the regulation, knows what it requires, and would simply like the option of non-compliance.” The Commissioner cites Dept. of Transp. v. Peach Hill Properties, 280 Ga. 624 (631 SE2d 660) (2006), as controlling authority. But in that case, the plaintiff “elected to seek declaratory judgment rather than initiate a new application” for a landfill exemption. Id. at 626 (1). The Supreme Court of Georgia held that the plaintiff must first file an exemption application, and be denied, in order to proceed with a declaratory judgment action, because the court cannot rule in the abstract. Id.

In this case, however, Bland Farms is not challenging the adoption of a rule that it is not affected by until it seeks an exemption under the rule, but is rather challenging the adoption of a rule it is automatically affected by. The position of the plaintiff in Peach Hill Properties, in contrast, is one step removed from the position of Bland Farms. As a Vidalia onion grower, Bland Farms is an interested party claiming a right to ship onions pursuant to a statute — a right it claims is impeded by a newly enacted regulation. If Bland Farms fails to comply with the new regulation, the Commissioner has statutory authority to impose civil and criminal penalties. See OCGA §§ 2-14-134 (d); 2-14-135 (a). Thus, Bland Farms has made a sufficient showing “that the facts are complete and that the interest is not merely academic, hypothetical, or colorable, but actual.” Bd. of Natural Resources v. Monroe County, 252 Ga. App. 555, 557 (1) (556 SE2d 834) (2001). The trial court therefore did not err in concluding that Bland Farms had standing to bring the declaratory judgment action. See, e.g., Atlanta Taxi Cab Co., supra, 281 Ga. at 345 (2) (party entitled to contest residency requirement to remove that as an impediment to the marketability of its certificates of operation to nonresidents); compare Monroe County, supra, 252 Ga. App. at 557-558 (1) (no standing where party had a generalized economic interest contingent upon future events).

2. The Commissioner asserts that the new regulation was valid. The crux of the dispute here is the application of the new regulation in conjunction with OCGA § 2-14-136. That Code section provides:

The Commissioner may determine and announce a shipping date each year for the Vidalia onion marketing season in this state upon the recommendation of the Vidalia Onion Advisory Panel. Vidalia onions may be shipped prior to such date with a mandatory U.S. No. 1 grade certificate. The Vidalia Onion Advisory Panel shall survey the conditions of the Vidalia onion crop and recommend a shipping date for the marketing season to the Commissioner.

(Emphasis supplied.) OCGA § 2-14-136. The regulation, Ga. Comp. R. & Regs. r. “40-7-8-.17 Packing Date,” provides:

The Commissioner is authorized to determine and announce a packing date each year for the Vidalia Onion marketing season which shall commence no sooner than 12:01 AM on the Monday of the last full week of April, each year. Vidalia Onions shall not be packed or put into commerce, at any time prior to the announced packing date. Once the packing date is established, Vidalia Onions may be packed in containers and shipped from that day forward. The Commissioner may, depending on crop conditions and with the recommendation of the Vidalia Onion Advisory Panel, specify a packing date other than the Monday of the last full week in April. Drying and other forms of onion preparation may take place prior to the packing date.
Authority: OCGA § 2-14-133.

(Emphasis supplied.)

The Commissioner contends that he is authorized to prescribe rules and regulations governing packing pursuant to OCGA § 2-14-133, and that the pack date rule is reasonable. Subsection (a) of OCGA § 2-14-133 provides in part:

The Commissioner is authorized to prescribe rules or regulations which may include, but not necessarily be limited to, quality standards, grades, packing, handling, labeling, and marketing practices for the marketing of onions in this state, including the requirements that all Vidalia onions be initially packed only in the Vidalia onion production area and that no Vidalia onion may be shipped from the Vidalia onion production area in bulk except as may be authorized by rule, and such other regulations as are necessary to administer properly this article. The Commissioner may also prescribe rules or regulations establishing a registration, inspection, and verification program for the production and marketing of Vidalia onions in this state and, after hearing and public comment, further limiting the Vidalia onion production area as defined in paragraph (5) of Code Section 2-14-131____

(Emphasis supplied.) The Commissioner contends that the packing date rule does not abolish or contravene OCGA § 2-14-136. He argues:

If the Commissioner chooses not to announce a shipping date in a particular season, the proviso on shipping before the shipping date does not apply, and growers may ship their Vidalia onions when they choose, but must nevertheless comply with all other regulatory requirements, which would include the packing date rule. If, however, the Commissioner were to exercise his discretion to announce a shipping date, then, in that event, growers could not ship before such date; however, under OCGA § 2-14-136, they would be allowed to ship onions graded U.S. No. 1 prior to that shipping date.

He asserts that “a potential window of time could exist between the packing date and the shipping date when growers” would be allowed to ship with a U.S. No. 1 grade. Bland Farms contends that the packing date rule is essentially a new shipping date rule, and that the Commissioner has no authority to promulgate a rule that establishes a new method of determining ship dates in contravention of OCGA § 2-14-136. It argues that what the statute permits has now been prohibited by rule.

The test of the validity of an administrative rule is twofold: whether it is authorized by statute and whether it is reasonable. In applying this test, we have explained that the interpretation of a statute by an administrative agency which has the duty of enforcing or administering it is to be given great weight and deference.

(Citation and punctuation omitted.) Ga. Dept. of Community Health v. Dillard, 313 Ga. App. 782, 785 (1) (723 SE2d 23) (2012). So the first question to be resolved is whether the new regulation is authorized by statute. OCGA § 2-14-133 (a) provides in part that “[t]he Commissioner is authorized to prescribe rules or regulations which may include, but not necessarily be limited to, quality standards, grades, packing...” This provision grants the Commissioner broad authority to regulate packing.

But even where a rule is authorized, it must not “exceed[ ] the scope of or [be] inconsistent with the authority of the statute upon which it is predicated.” Dillard, supra. Bland Farms argues, and the trial court concluded, that the pack date rule “establishes] a new method for determining ship dates for Vidalia onions in contravention of OCGA § 2-14-136,” and therefore exceeds the scope of the authority granted by OCGA § 2-14-133. Bland Farms argues further that the new pack date rule “prevent[s] Vidalia onion growers from exercising either of the two statutory rights granted in OCGA § 2-14-136 — namely, to ship Vidalia onions (1) at growers’ discretion in absence of a shipping date, or (2) not before the shipping date without a U.S. No. 1 certification.” But this argument is misguided.

OCGA § 2-14-136 does not grant growers a statutory right to ship, rather it gives the Commissioner authority and/or discretion to announce a shipping date each year. If the Commissioner does not announce a shipping date, the statute is silent as to when growers can ship, and as Bland Farms argues, the result is that growers can then ship at their discretion. If the Commissioner does announce a shipping date, however, the statute provides that growers can ship prior to the date announced with a U.S. No. 1 grade certificate. The statute is not written in terms of a right to ship generally, but only permission to ship in a certain circumstance, all dependent upon the exercise of the Commissioner’s discretion. Indeed, the provisions of the Vidalia Onion Act are written to protect the Vidalia onion brand, OCGA § 2-14-132.1, regulate the Vidalia onion industry, OCGA § 2-14-133, and impose penalties for unlawfully using the Vidalia onion brand or for failing to comply with regulations issued by the Commissioner, OCGA §§ 2-14-134; 2-14-135. The Act does not afford growers statutory rights with regard to shipping or packing. Rather, the Act gives the Commissioner both the authority to determine and announce a shipping date and the authority to promulgate a rule or regulation for packing. While OCGA § 2-14-136 provides thatonions may be shipped prior to the announced shipping date with a U.S. No. 1 grade certificate, the freedom to do so can be further limited by the Commissioner’s authority to regulate packing pursuant to OCGA § 2-14-133. For example, the Act provides that the Commissioner has the authority to prescribe a rule or regulation “that no Vidalia onion may be shipped from the Vidalia onion production area in bulk except as may be authorized by rule.” OCGA § 2-14-133 (a). This holds true even if the Commissioner announces a shipping date and the onions carry a U.S. No. 1 grade certificate.

Decided June 30, 2015

Samuel S. Olens, Attorney General, Isaac Byrd, Deputy Attorney General, JohnE. Hennelly, Senior Assistant Attorney General, Elizabeth A. Monyak, Assistant Attorney General, for appellant.

Balch & Bingham, Michael J. Bowers, Christopher S. Anulewicz, Joshua M. Moore, for appellee.

Alston & Bird, Nowell D. Berreth, David J. Stewart, Kyle G. A. Wallace, amici curiae.

We conclude, therefore, that the packing date rule is within the Commissioner’s authority pursuant to OCGA § 2-14-133 and is not inconsistent with OCGA § 2-14-136, as all authority to regulate packing and shipping rests with the Commissioner. See, e.g., Ga. Oilmen’s Assn. v. Ga. Dept. of Revenue, 261 Ga. App. 393, 395-396 (1) (a) (i) (582 SE2d 549) (2003) (Department of Revenue regulations authorized by statute and do not conflict with other statutory law). We also conclude that some evidence was presented to support a finding that the packing date rule is reasonable in light of the testimony and letters received by the Commissioner concerning the declining quality of the Vidalia onion and the threat to the industry. See Albany Surgical, P.C. v. Dept. of Community Health, 257 Ga. App. 636, 640 (1) (b) (572 SE2d 638) (2002) (“judicial review of the reasonableness of a regulation under the second prong analysis is limited, because the regulation must be upheld if the agency presents any evidence to support the regulation, although contrary evidence is admitted by the challenging party.” [Cit.]) (emphasis supplied).

The trial court therefore erred in granting Bland Farms’ motion for judgment on the pleadings, and in denying the Commissioner’s motion for summary judgment.

Judgment affirmed in part and reversed in part in Case No. Al 5A0042. Appeal dismissed as moot in Case No. Al SAI 610.

Phipps, C. J., and Doyle, P. J., concur.

       In Case No. A15A1610, the Commissioner appeals from a ruling of the trial court clarifying that the final order in Case No. A15A0042 “clearly granted the injunction, and thus [the Commissioner is] prohibited from enforcing” the new packing regulation. Because we conclude in Case No. Á15A0042 that the trial court erred in ruling that the packing rule was invalid, Case No. A15A1610 is rendered moot.

       We note that 11 onion growers filed an amicus curiae brief in this court in support of the Commissioner.

       In addition to the new packing date rule, the Commissioner also amended Ga. Comp. R. & Regs. r. 40-7-8-.02 to remove the definition of “shipping date” and add the definition of “packing date.” “ ‘Packing date’ means the first day on which Vidalia Onions may be packed and shipped into commerce.” Ga. Comp. R. & Regs. r. 40-7-8-.02 (1) (r).


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A15A0175, A15A0176.
    ALBENBERG v. SZALAY et al.; and vice versa.
    (774 SE2d 730)
   McFadden, Judge.

Anne Albenberg, whose property is landlocked, filed this action against adjoining landowners James and Karin Szalay, seeking, among other things, an ingress-egress easement across the Szalays’ property. Both parties moved for summary judgment. The trial court granted both motions in part and denied both motions in part, and these appeals followed.

We find that the trial court correctly determined that Albenberg has an express easement across the Szalays’ property, a finding with which the Szalays now agree. But we reject Albenberg’s contention that that express easement can be varied or expanded on the basis of an implied easement or a utilities easement. We likewise find that the Szalays are entitled to summary judgment on Albenberg’s claim for a prescriptive easement because the undisputed evidence shows that she abandoned any prescriptive easement. Accordingly, we affirm in part and reverse in part.

1. Facts.

To prevail on a motion for summary judgment, “the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law.” Atlantic Ins. Brokers v. Slade Hancock Agency, 287 Ga. App. 677 (652 SE2d 577) (2007) (citation omitted). On appeal from the grant or denial of such a motion, we apply a de novo standard of review. King v. GenOn Energy Holdings, 323 Ga. App. 451, 453 (2) (747 SE2d 15) (2013).

The relevant facts are largely undisputed. Albenberg and the Szalays have a common predecessor in title. In 1971, when the common predecessor in title first conveyed the property now owned by Albenberg, the warranty deed included the grant of a permanent easement over property retained by the common predecessor. The warranty deed describes the easement as

a permanent easement for ingress and egress to the above described property on and across lands of the Grantor. Said easement to be located along the eastern line of Grantor and running along said line until it intersects with the Hall County road known as the Old Shallowford Road (also known as Robinson Creek Road), said easement being twenty feet in width. Grantor specifically grants Grantee herein the right to grade, level, pave and make such improvements on said easement as may be desired by Grantee, so long as improvements are solely for the purpose of making, maintaining, repairing, modifying or replacing a road for ingress and egress.

Albenberg has owned her property since 1974. The Szalays acquired the property over which the easement runs in 2006.

Albenberg’s property does not abut a public right-of-way. Since the purchase of the property, Albenberg and her family and guests have always used the same route to access the property. That route crosses the Szalays’ property. Sometime in the 1970s or early 1980s, near the point where Albenberg’s property touches the Szalays’ property, a creek flooded and washed out the route. Automobiles could not cross the route at that point.

Albenberg and her family used the property for recreational purposes three or four times a year from its purchase in 1974 until July 13, 1994, when they stopped using it at all. They hope to construct a residence on the property in the future. According to Albenberg, the construction of a road within the easement area adequate to accommodate cars would require the construction of a bridge over a creek, the installation of a culvert pipe and redirection of the creek, or other significant grading and construction, given the topography.

Apparently Albenberg’s son went to the property in July 2012 and discovered that the Szalays had built a fence across the route. Albenberg filed this action in May 2013, asserting that she was entitled to an easement by her deed, by prescription, by a recorded plat of the Szalays’ property, and by implication. See OCGA § 44-9-1 (“The right of private way over another’s land may arise from an express grant, from prescription by seven years’ uninterrupted use through improved lands or by 20 years’ use through wild lands, by implication of law when the right is necessary to the enjoyment of lands granted by the same owner, or by compulsory purchase and sale____”). She also sought a utilities easement and trespass damages because of the Szalays’ erection of the gate. The Szalays admitted that Albenberg has an express easement across their property for ingress and egress.

Albenberg and the Szalays moved for summary judgment, and the trial court entered an order in favor of Albenberg on some claims and in favor of the Szalays on others. Specifically, the trial court granted Albenberg summary judgment on her claim for the establishment of an easement by deed. It denied both parties’ motions for summary judgment on Albenberg’s claims for easement by prescription, ruling that genuine issues of material fact remained. (The court only expressly denied Albenberg’s motion for summary judgment on this claim, but because it found that genuine issues of material fact remained, this amounted to a denial of the Szalays’ motion for summary judgment as well.) The trial court denied Albenberg’s motion for summary judgment and granted the Szalays’ motion for summary judgment on Albenberg’s claim for easement by plat, ruling that the plat upon which Albenberg relied did “not show anything other than the location of [Albenberg’s] recorded easement.” The trial court denied Albenberg’s motion for summary judgment and granted the Szalays’ motion for summary judgment on Albenberg’s claim for easement by implication, ruling that because she had an express easement, there was no need to imply an easement. The court denied the Szalays’ motion for summary judgment on Albenberg’s trespass claim, finding that although the claim was moot, given the removal of the gate, the issue of Albenberg’s damages remained. It granted the Szalays summary judgment on Albenberg’s claim for a utilities easement because the express easement did not include such. Albenberg appealed, and the Szalays cross-appealed.

2. Express easement.

Although the trial court granted her summary judgment on her claim for an express easement, Albenberg argues that the trial court erred by limiting the boundaries of her express easement to 20 feet from the Szalays’ property line because the property is impassable in its southeast corner 20 feet from the property line and requires construction of a bridge over the creek. We disagree.

The trial court simply granted Albenberg an express easement “as described in the deed recorded in Deed Book 462, Page 225, Hall County Deed Records” as Albenberg had requested in her complaint and motion for summary judgment. And Albenberg concedes that the deed describes her easement as being 20 feet from the Szalays’ property line. But, she argues, we must apply the principles of contract construction to uphold the intention of the grantor of the easement, which was to provide vehicular access to Albenberg’s property. In support of this argument, she points to the language in the easement grant which refers to a road.

The “rules [for the construction of contracts] are irrelevant, because the [deed is] unambiguous and do[es] not require construction.” Miller v. Slater, 182 Ga. 552, 556 (186 SE 413) (1936). Moreover, “an easement with a fixed location cannot be substantially changed or relocated without the express or implied consent of the owners of both the servient estate and the dominant estate, absent reservations contained in the instrument creating the easement.” Herren v. Pettengill, 273 Ga. 122, 123 (2) (538 SE2d 735) (2000) (citations omitted). “[W]here the parties have established the actual location and dimensions of an easement, that determination is the controlling factor under Georgia law.” Sloan v. Sarah Rhodes, LLC, 274 Ga. 879, 880 (560 SE2d 653) (2002). The grant here fixed the easement’s location as a 20-foot width along the eastern line of the Szalays’ property. And the reference to a road does not change this conclusion. The easement includes “the right to grade, level, pave and make such improvements on said easement as may be desired by Grantee, so long as improvements are solely for the purpose of making, maintaining, repairing, modifying or replacing a road for ingress and egress.” By its own terms, the language refers to the grantee’s right to create and maintain a road on the easement itself.

3. Easement by plat.

Albenberg argues that the trial court erred by denying her motion for summary judgment and granting the Szalays’ motion on her claim that a plat established an easement in her favor. This plat was recorded in 1975 and depicted the parcel later acquired by the Szalays. Across the parcel are dotted lines labeled “road.” Albenberg argues that a conveyance of the parcel from one of the Szalays’ predecessors in title to another of their predecessors in title referred to this 1975 plat. This reference in the conveyance, she contends, “effectively resulted in the conveyance of a perpetual easement” in her favor.

But the plat does not describe the road as any kind of easement benefitting Albenberg’s property. Moreover, as the trial court held, the dotted lines seem to be simply a visual depiction of the easement described in Albenberg’s chain of title: the lines run “along the eastern line of [the Szalays’ property] . .. until it intersects with the Hall County road known as the Old Shallowford Road (also known as Robinson Creek Road),... [and depict] twenty feet in width.” The trial court did not err by granting summary judgment to the Szalays on this claim.

4. Easement by implication.

Albenberg argues that the trial court erred in granting the Szalays summary judgment on her claim for easement by implication. “An implied easement may arise when the right is necessary to the enjoyment of lands granted by the same owner.” Eardley v. McGreevy, 279 Ga. 562, 563 (1) (615 SE2d 744) (2005) (citation and punctuation omitted). However, “grants by implication are not favored.” Dept. of Transp. v. Meadow Trace, 280 Ga. 720, 721 (631 SE2d 359) (2006). And “[b]efore one can assert a way of necessity over the land of another, every essential requisite to such a right must affirmatively appear. Not only the necessity of ingress to and egress from his own land must exist, but it must further be alleged that there is no other suitable outlet.” Hasty v. Wilson, 223 Ga. 739, 748 (4) (158 SE2d 915) (1967) (citation and punctuation omitted). Here, Albenberg has an express easement. And she has not come forward with evidence that she cannot use her express easement to access the public roadway “without unreasonable difficulty.” Eardley, 279 Ga. at 563 (1).

She asserts that the construction of a passable road within the easement area would require the construction of a bridge over a creek, the installation of a culvert pipe and redirection of the creek, or other significant grading and construction, given the topography. But she has pointed to no evidence of the costs of such an undertaking. Accordingly, she has not supported her claim that she is entitled to an implied easement of necessity, which

never exists where a [person] can get to [her] own property through [her] own land, however inconvenient the way to [her] own land may be. Particularly is this true where the record does not show the character of the obstruction, its nearness to the highway, the additional cost of construction, and its relation to the value of the tract.

Gaines v. Lunsford, 120 Ga. 370, 372-373 (47 SE 967) (1904) (citation omitted). Although a property could have an “obstruction of a character that makes it not absolutely impossible to reach” a public road, but whose “expense [to do so] would be so out of proportion to the value of the estate as to warrant laying out a way of necessity, . . . [n]othing of that sort appears here.” Id. Because Albenberg did not present evidence sufficient to establish a genuine issue of fact on the issue of the necessity of an implied easement, an essential element of this claim, the trial court did not err by granting summary judgment to the Szalays on this claim.

5. Easement by prescription.

The Szalays argue that the trial court erred by denying their motion for summary judgment on Albenberg’s claim for an easement by prescription. The facts raise and the parties address certain issues arising out of the interplay between the law of easements by deed and the law of easements by prescription. But we do not reach those issues. Instead we agree with the Szalays and find, as a matter of law, that any easement by prescription has been abandoned.

“An easement may be lost by abandonment or forfeited by nonuse if the abandonment or nonuse continues for a term sufficient to raise the presumption of release or abandonment.” OCGA § 44-9-6. The term of nonuse sufficient to raise such a presumption “generally follows the prescriptive period.” Forehand v. Carter, 270 Ga. 534, 536 (3) (512 SE2d 611) (1999) (citations omitted). See Pindar, Ga. Real Estate Law, §§ 8-29, 8-31 (7th ed.). The prescriptive period is “seven years’ uninterrupted use through improved lands [and] 20 years’ use through wild lands.” OCGA § 44-9-1.

Decided June 30, 2015.

Coleman, Chambers & Rogers, J. Cale Rogers, for appellant.

Stewart, Melvin & Frost, Rustin L. Smith, Nancy L. Richardson, for appellees.

The undisputed evidence is that the Szalays’ tract has had a house on it since 1975. The tract, therefore, has not been wild at least since then. Hopkins v. Roach, 127 Ga. 153, 154 (56 SE 303) (1906); Henderson v. Cam Dev. Co., 190 Ga. App. 199, 200 (378 SE2d 495) (1989). The applicable prescriptive period is thus seven years. Albenberg’s own evidence is that she and her family had not used the Szalays’ tract to access her property at all since July 13, 1994. Thus the undisputed evidence shows that Albenberg had not used the property for a period of time well beyond the period that would generally raise a presumption of abandonment. See Forehand, 270 Ga. at 536 (3). And she has pointed to nothing to show that the presumption of abandonment should be rebutted. Accordingly, the Szalays are entitled to summary judgment on this claim.

6. Utilities easement.

Albenberg argues that the trial court erred by granting summary judgment to the Szalays on her claim for a utility easement. We disagree. An easement for ingress and egress, which is the kind of easement granted to Albenberg, does not include a utility easement. Lanier v. Burnette, 245 Ga. App. 566, 569-570 (2) (538 SE2d 476) (2000). Albenberg is not entitled to an implied easement by necessity for utilities; “[s]ince utility companies have the power of eminent domain, then the utility can acquire all necessary easements through the exercise of such power.” Id. (citation omitted).

Judgments affirmed in part and reversed in part.

Ellington, R J., and Dillard, J., concur.


author: Branch, Judge.

text:
    A15A0266.
    ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY v. ROTHMAN.
    (774 SE2d 735)
   Branch, Judge.

Charles Rothman was injured in an automobile accident involving a vehicle driven by Due Nyguen. The truck driven by Rothman at the time of the accident belonged to his employer, Allgood Services of Georgia. Rothman subsequently filed suit against Nyguen, seeking to recover medical expenses in excess of $53,000 and lost wages in excess of $20,000. Rothman also served the complaint on his personal automobile liability insurance carrier, Allstate Fire and Casualty Insurance Company (“Allstate”), as well as Allgood’s insurer, West-field Insurance Company (“Westfield”), in their capacity as uninsured motorist (UM) carriers.

Nyguen was insured by Travelers Indemnity Company under an automobile liability insurance policy with a limit of $100,000. After Travelers paid Rothman the $100,000 available under Nyguen’s policy, a dispute arose between Allstate and Westfield as to whether Allstate was entitled to set off the $100,000 Rothman received from Nyguen’s insurer against the limits of liability otherwise available under the Allstate policy. As a result of this dispute, Rothman filed a motion in the trial court seeking a determination as to the priority of the UM coverages available under the Allstate and Westfield policies. Following a hearing on that motion, the trial court found that because Allstate had received a premium from Rothman, it was “primarily responsible for compensating [Rothman], without a set-off [against] or reduction [of its policy limits] for any recovery [Rothman received] from [Nyguen’s] liability [insurer].” The trial court subsequently certified its order for immediate review, and Allstate filed an application for an interlocutory appeal, which we granted. This appeal followed. For reasons explained more fully below, we reverse the trial court’s order.

To understand the current dispute, it is necessary to examine briefly the evolution of UM coverage in Georgia. Prior to 2009, all UM policies issued in Georgia were so-called “reduced by” or “difference in limits” policies which allowed the UM insurer to set off against its policy limits any payments its insured received from the tortfeasor’s insurer. See OCGA § 33-7-11 (b) (1) (D) (ii) (2000). Put another way, under these policies, payments received from the tortfeasor’s insurer reduced the limits of liability available under the insured’s UM coverage. Because prior to 2009 all UM policies were “reduced by” policies, the courts developed stacking rules (also known as priority of payment rules) to be applied in cases where more than one UM policy was available to an injured insured. See Progressive Classic Ins. Co. v. Nationwide Mut. Fire Ins. Co., 294 Ga. App. 787, 788 (670 SE2d 497) (2008). These rules are used to determine which policy provides primary coverage and which policies are considered excess. Id. See also Donovan v. State Farm Mut. Auto. Ins. Co., 329 Ga. App. 609, 611 (765 SE2d 755) (2014). Additionally, under these stacking rules, the policy last in line for payment is entitled to the set-off for any payments the insured received from the tortfeasor’s insurer. See Donovan, 329 Ga. App. at 611.

Following the development of these stacking rules, the legislature amended the relevant statute effective January 1, 2009. See OCGA § 33-7-11 (b) (1) (D) (2009). Under the current law, insurers are required to offer two types of UM coverage. The first type is “added on” or excess UM coverage, which provides that the applicable limits of liability are available to cover any damages an insured suffers which exceed the tortfeasor’s policy limits. See OCGA § 33-7-11 (b) (1) (D) (ii) (I). The second type of available UM coverage is the traditional “reduced by” coverage, under which the UM limits of liability are reduced by any amount that the insured received from the tortfeasor’s insurer. See OCGA §33-7-11 (b) (1) (D) (ii) (II). Insureds who elect the “reduced by” coverage generally pay a lower premium than that charged for excess or added on UM coverage. See Frank E. Jenkins and Wallace Miller III, Ga. Automobile Ins. Law § 39:12 (d) (2014-2015 ed.).

The current case involves the two different types of UM policies available in Georgia. The Allstate policy provides “reduced by” coverage and states that its limits of liability “will be reduced by all amounts paid by or on behalf of the owner or operator of the uninsured or underinsured motor vehicle.” The Westfield policy provides “added on” coverage and the relevant policy provisions are set forth in an endorsement titled “GEORGIAUNINSURED MOTORISTS COVERAGE — ADDED ON TO AT-FAULT LIABILITY LIMITS.” This endorsement states that Westfield’s policy “will pay all sums in excess of the applicable deductible . . . that the ‘insured’ is legally entitled to recover as compensatory damages from the owner or driver of an ‘uninsured motor vehicle.’ ” The Allstate policy has limits of liability of $100,000 while the Westfield policy has a UM limit of $500,000.

None of the parties dispute that to the extent Nyguen’s policy limits did not fully compensate Rothman for the injuries he suffered, Rothman is entitled to recover under the UM provisions of the Allstate and/or Westfield policies. The parties also appear to agree that in terms of priority, the Allstate policy would provide the primary UM coverage with the Westfield policy providing excess coverage, i.e., Westfield would be required to pay only if Allstate’s policy limits are exhausted. Allstate and Westfield disagree, however, as to whether Allstate is entitled to set off against its own policy limits the amount paid to Rothman by Nyguen’s insurer. If Allstate is entitled to such a set-off, then its policy limits will be considered exhausted and West-field would be responsible for paying any damages incurred by Rothman in excess of $100,000. If Allstate is not entitled to claim a set-off, then it would be liable for any of Rothman’s damages in excess of $100,000 and up to $200,000, while Westfield would be liable for any damages incurred by Rothman in excess of $200,000 and up to Westfield’s policy limits.

In the trial court, Westfield argued that because under the stacking rules Allstate was the primary UM insurer and was therefore “first in line” for payment of UM benefits, it was not entitled to • a set-off, despite Allstate’s express policy language to the contrary. The trial court agreed and refused to allow Allstate a set-off against its policy limits for the payment Rothman received from Nyguen’s insurer, reasoning that such a set-off would relieve Allstate of its obligation to provide any UM coverage. On appeal, Allstate argues that under the circumstances of this case, the trial court erred in applying the stacking rules so as to void Allstate’s policy language and deprive Allstate of its contractual right to a set-off. In light of Donovan, which was decided after the trial court made its ruling, we agree.

In Donovan, we explained that where multiple UM carriers provide coverage but only one of those carriers provides “reduced by” coverage, then the carrier providing the “reduced by” coverage is entitled to the set-off, regardless of whether that carrier would be considered primary, secondary, or excess under the stacking rules. See Donovan, 329 Ga. App. at 612. In such situations, it is the policy language that controls such that the carrier whose policy provides for a set-off may take that set-off, regardless of where the policy falls in priority of payment. Id. (“the trial court was not required to apply the priority of payment rules, because this case involves only one insurance carrier.. .who is entitled to a set-off”). See also Frank E. Jenkins and Wallace Miller III, Ga. Automobile Ins. Law § 39:5 (d) (2014-2015 ed.) (where more than one UM policy is at issue, “including both traditional, ‘reduced’ UM coverage and ‘added on’ UM coverage... the liability coverage set-off should remain intact but would simply default to the ‘reduced’ coverage carrier”).

Decided June 30, 2015.

Carlock, Copeland & Stair, Frederick M. Valz III, Melissa L. Bailey; Moore & Associates, Charts L. Johnson, for appellant.

Steven M. Barnett, for appellee.

In this case, Allstate’s is the only “reduced by” policy and so it is entitled to set off against its policy limits the $100,000 Rothman received from Nyguen’s insurer. See Donovan, 329 Ga. App. at 612. Accordingly, we reverse the trial court’s order.

Judgment reversed.

Andrews, P. J., and Miller, J., concur.

       Under Georgia law, an “[u]ninsured motor vehicle” is defined to include an underinsured vehicle, i.e., an insured vehicle whose insurance coverage is insufficient to compensate fully an individual injured in an accident involving that vehicle. See OCGA § 33-7-11 (b) (1) (D) (ii).

       Specifically, courts employ three tests to determine the order in which available UM policies should be stacked:
      the “receipt of premium” test, the “more closely identified with” test, and the “circumstances of the injury” test. Under the “receipt of premium” test, the insurer that receives a premium from the injured insured is deemed to be primarily responsible for providing coverage. Under the “more closely identified with” test, the policy with which the injured party is most closely identified must provide primary coverage. If neither of those tests is helpful in a particular case, the courts look to the circumstances of the injury to see which policy provides primary coverage.

        Dairyland Ins. Co. v. State Farm Auto. Ins. Co., 289 Ga. App. 216, 217 (656 SE2d 560) (2008) (footnotes omitted), disapproved on other grounds, Progressive Classic, 294 Ga. App. at 791-792.

       The mere fact that Allstate would be considered the primary UM insurer and that allowing a set-off will relieve Allstate of any payment obligation under its UM policy does not, without more, void Allstate’s contractual right to a set-off. To hold otherwise would require us to rewrite Allstate’s policy to provide Rothman with a benefit that he neither selected nor paid for. This Court, however, is “without the authority to interpret, rewrite, or change [the] terms” of an unambiguous insurance policy. Marett Properties v. Prudential Ins. Co. of America, 167 Ga. App. 631, 633 (307 SE2d 69) (1983) (citation omitted). See also Cotton States Mut. Ins. Co. v. Coleman, 242 Ga. App. 531, 533 (530 SE2d 229) (2000) (“[w]hen the language of an insurance policy defining the extent of the insurer’s liability is unambiguous and capable of but one reasonable construction, the courts must [apply] the contract as made by the parties”) (citation and punctuation omitted); Crouch v. Federated Mut. Ins. Co., 257 Ga.App. 604, 605-606 (a) (571 SE2d 574) (2002).


author: Dillard, Judge.

text:
    A15A0321.
    HARTZLER v. THE STATE.
    (774 SE2d 738)
   Dillard, Judge.

A jury convicted Colon Louis Hartzler of two counts of homicide by vehicle in the first degree, driving under the influence less safe, driving under the influence per se, making false statements, and a seat-belt violation. Hartzler appeals, arguing that the evidence was insufficient to support his vehicular-homicide convictions; and that the trial court erred by admitting evidence of his blood-alcohol content in violation of the Confrontation Clause, improperly charging the jury that the negligence of the victim was irrelevant for purposes of establishing causation, and improperly expressing an opinion on his guilt. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on June 25, 2010, Hartzler and the victim spent the day together drinking beer and “off roading” or “mudding” in Hartzler’s jeep, which had no doors. And later that evening, Hartzler drove the victim toward a restaurant, where she planned to meet some friends. They were traveling north on Georgia 400 and, at approximately 10:22 p.m., they reached the intersection where the restaurant was located. Then, Hartzler, driving at a speed of no less than 18 miles per hour, took a sharp left turn, and the victim, who was not wearing a seatbelt, was ejected from the vehicle and onto the middle of the highway.

After the victim was thrown from the jeep, Hartzler drove another 70 feet, but he eventually stopped and walked back onto the unlit highway toward the victim. And as Hartzler was standing over her, a minivan struck him and then ran over the victim. Another motorist who witnessed the collision called 911, and law enforcement and medical personnel responded to the scene. Hartzler sustained serious injuries and was air lifted to an area hospital for treatment. Tragically, the victim died.

Several individuals who responded to the scene testified that they smelled the strong odor of alcohol emanating from Hartzler. His jeep also smelled strongly of alcohol, and there was a cooler inside it, which contained a spilled alcoholic beverage. After the collision, while Hartzler was still at the hospital, a law-enforcement officer read him an implied-consent notice and requested that he submit to a blood test, but Hartzler refused. Later, in a taped interview, Hartzler admitted that he and the victim had taken approximately eighteen beers with them to go mudding, but he claimed that he only drank four beers and that he stopped drinking at 5:00 p.m. Eventually, the police obtained a warrant for Hartzler’s medical records, which revealed that a few hours after the accident his blood-alcohol content was 0.19 grams, more than twice the legal limit.

In a nine-count indictment, Hartzler was charged with three counts of first-degree homicide by vehicle, driving under the influence less safe, driving under the influence per se, reckless driving, making false statements, a reflector violation, and a seat-belt violation. And after a jury trial, Hartzler was acquitted of one count of first-degree homicide by vehicle and the reckless-driving count. The court also granted a directed verdict of acquittal as to the reflector-violation count, but the jury found Hartzler guilty of all the remaining charges. Thereafter, Hartzler filed a motion for a new trial, which the trial court denied. This appeal follows.

1. Hartzler first argues that the evidence was insufficient to support his first-degree vehicular-homicide convictions because the State failed to establish a sufficient causal connection between his intoxication and the events leading up to the victim’s death. We disagree.

To begin with, we note that when a criminal conviction is appealed, the evidence must be viewed “in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.” And, of course, in evaluating the sufficiency of the evidence, we do not “weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.” Thus, we will uphold a jury’s verdict so long as there is “some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.” Bearing these guiding principles in mind, we turn now to Hartzler’s specific claim of error.

Our analysis begins with OCGA § 40-6-393 (a), which provides that “[a]ny person who, without malice aforethought, causes the death of another person through the violation of subsection (a) of Code Section... 40-6-391 [driving under the influence of alcohol],... commits the offense of homicide by vehicle in the first degree . . . .” And OCGA § 40-6-391 provides, in relevant part, that “[a] person shall not drive or be in actual physical control of any moving vehicle while [u]nder the influence of alcohol to the extent that it is less safe for the person to drive”; or “[t]he person’s alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended.”

Without citing to any legal authority, except for the standard of review for sufficiency-of-the-evidence claims, Hartzler summarily asserts that the evidence was insufficient to support his vehicular-homicide convictions because (1) there were significant “intervening causes,” such as the j eep having no doors and the victim’s intoxication and failure to wear a seat belt; (2) the coroner testified that the cause of death was an accident; and (3) there was an insufficient causal connection between any act of driving under the influence and the victim’s death.

To find a defendant guilty of first-degree vehicular homicide in Georgia, a jury must conclude that the defendant’s conduct was “the ‘legal’ or ‘proximate’ cause, as well as the cause in fact, of the death.” And an injury or damage is proximately caused by an act or a failure to act whenever it appears from the evidence that “the act or omission played a substantial part in bringing about or actually causing the injury or damage and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.” Further, what constitutes proximate cause is “undeniably a jury question and is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy, and precedent.”

As to the evidence in this case, a motorist — who observed Hartzler make the left turn during which the victim was thrown from his jeep — described Hartzler’s driving as “faster than normal and careless.” Further, at least five witnesses testified that, when they responded to the scene, they smelled the strong odor of alcohol emanating from Hartzler. And one witness — who saw Hartzler walk out into the highway toward the victim — testified that he was “stumbling” and “pretty relaxed, almost as if he was drunk.” Indeed, Hartzler’s medical records confirmed that, on the night in question, his blood-alcohol content was more than twice the legal limit. Thus, under these particular circumstances, there was sufficient evidence for a jury to find that Hartzler’s conduct of driving while impaired by alcohol and taking a faster than normal turn in a door-less jeep, thereby causing his passenger to be thrown from the vehicle, “played a substantial part in bringing about [her] death and that [her] death was a reasonably probable consequence of [his] actions.”

2. Next, Hartzler argues that the trial court’s admission of his medical records, which revealed his blood-alcohol content, violated the Confrontation Clause of the United States Constitution because no one with personal knowledge of the testing testified at trial. Again, we disagree.

At the outset, we note that, as a general rule, “admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.” In Crawford v. Washington, the Supreme Court of the United States held that “the admission of out-of-court statements that are testimonial in nature violates the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination.” And statements are “testimonial in nature” when the “primary purpose of the statements is to establish or prove past events potentially relevant to later criminal prosecution.” But statements made by witnesses to “questions of investigating officers are nontestimonial when they are made primarily to enable police assistance to meet an ongoing emergency.”

As previously noted, Hartzler argues that the admission of testimony regarding the blood-test results contained in his medical records violated the Confrontation Clause because the doctor who testified about the records played no role in performing the blood test. The Supreme Court of Georgia, however, has expressly held that “[m]edical records created for treatment purposes are not testimonial.” And here, Hartzler’s medical records are not testimonial in nature because “the circumstances surrounding their creation and the statements and actions of the parties objectively indicate that the records were prepared with a primary purpose of facilitating [his] medical care.” Thus, unlike other cases involving blood tests performed in a forensic lab at the request of law-enforcement officers, Hartzler’s blood was not drawn and tested as part of an ongoing criminal investigation or for the purpose of aiding in his prosecution. In fact, a law-enforcement officer sought Hartzler’s consent to conduct such testing, but he flatly refused. Thus, under these particular circumstances, Hartzler’s medical records and the testimony from a doctor regarding those records were not testimonial in nature, and therefore, the admission of this evidence did not violate his rights under the Confrontation Clause.

3. Hartzler also argues that the trial court’s jury instruction on causation was overly broad and improperly instructed that any negligence on the part of the victim was irrelevant. This claim is without merit.

As an initial matter, we note that appellate review of a jury charge is de novo. And in Georgia, the only requirement regarding jury charges is that “the charges, as given, were correct statements of the law and, as a whole, would not mislead a jury of ordinary intelligence.”

And here, in relevant part, the trial court charged the jury as follows:

A person commits the offense of homicide by vehicle in the first degree when without malice aforethought that person causes the death of another person by driving any vehicle in such a manner as to be in reckless disregard for the safety of persons or property, or by driving or being in actual physical control of any moving vehicle while under the influence of alcohol to a degree that renders the person incapable of safely driving.
Proximate cause exists when the defendant’s act played a substantial part in bringing about or actually causing the victim’s death, and the death was either a direct result or a reasonably probable consequence of the act.
If you find based on all the facts and circumstances of this case that the defendant’s conduct was a substantial factor in causing the victim’s death, then any negligence on the part of the decedent would be irrelevant.

Hartzler now argues that the trial court’s instruction that, to convict him of first-degree vehicular homicide, the jury must find that his conduct was a “substantial factor” in causing the victim’s death was overly broad and that the court erred by failing to explain that the jury must find a causal connection between his conduct and the victim’s death. However, as discussed in Division 1 supra, we have repeatedly held that a defendant’s conduct is a proximate cause of a victim’s death if it was a “substantial factor” in causing it and that it was either a direct result or a reasonably probable result of the defendant’s conduct.

Hartzler also asserts that the trial court erroneously instructed the jury that any negligence on the part of the victim was irrelevant. But we have also previously held that, if the defendant’s conduct was a substantial factor in causing the victim’s death, any negligence on the part of the victim is not relevant. Thus, the trial court’s instruction regarding causation was not erroneous because it was a correct statement of law and would not mislead a juror of average intelligence.

4. Lastly, Hartzler contends that the trial court improperly expressed an opinion on the evidence when it referred to the decedent as the “victim” twice when instructing the jury on proximate cause. Once again, we disagree.

Under OCGA § 17-8-57, “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” And in order to determine whether a trial court has improperly expressed an opinion in its charge as to what has or has not been proved, “the whole charge may be considered.”

Decided June 30, 2015.

Matthew G. Leipold, for appellant.

Lee Darragh, District Attorney, Burke O. Doherty, Assistant District Attorney, for appellee.

In its jury instruction on proximate cause, the trial court twice referred to the decedent as the “victim” and Hartzler contends that, in doing so, the court improperly expressed an opinion as to his guilt by suggesting that the decedent died as a result of a crime, rather than an accident. But our Supreme Court has held that the use of the word “victim” in referring to the deceased does not “amount to an improper comment on the guilt of the accused.” Furthermore, considering the jury charge as a whole, we note that the trial judge specifically instructed the jury that “by no ruling or comment that the court has made during the progress of the trial have I intended to express any opinion on the facts of the case, the credibility of the witnesses, the evidence or what your verdict should be. The court has no opinion as to what your verdict should be.” Thus, the trial court did not err by referring to the deceased as “the victim” in its jury instruction on proximate cause.

For all of the foregoing reasons, we affirm Hartzler’s convictions.

Judgment affirmed.

Ellington, P. J., and McFadden, J., concur.

        See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

        Sowell v. State, 327 Ga. App. 532, 534 (759 SE2d 602) (2014).

        Lee v. State, 317 Ga. App. 507, 508 (731 SE2d 768) (2012) (punctuation omitted); see Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

        Sowell, 327 Ga. App. at 534 (punctuation omitted).

       OCGA § 40-6-393 (a).

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-6-391 (a) (5).

        Kirk v. State, 289 Ga. App. 125, 127 (656 SE2d 251) (2008) (punctuation omitted); accord Ponder v. State, 274 Ga. App. 93, 95 (1) (616 SE2d 857) (2005).

        Kirk, 289 Ga. App. at 127 (punctuation omitted); accord Ponder, 274 Ga. App. at 95 (1); see Fletcher v. State, 307 Ga. App. 131, 132 (2) (a) (704 SE2d 222) (2010) (“Inasmuch as defendant’s conduct was a ‘substantial factor’ in causing the victim’s death, it was a proximate cause of the victim’s death.” (punctuation omitted)).

        McGrath v. State, 277 Ga. App. 825, 829 (1) (627 SE2d 866) (2006) (punctuation omitted); accord Zwiren v. Thompson, 276 Ga. 498, 500 (578 SE2d 862) (2003); Reed v. Carolina Cas. Ins. Co., 327 Ga. App. 130, 132 (2) (762 SE2d 90) (2014).

        Ponder, 274 Ga. App. at 95-96 (1) (punctuation omitted); see also Jones v. State, 313 Ga. App. 590, 592-93 (1) (722 SE2d 202) (2012) (holding that evidence was sufficient to sustain first-degree vehicular-homicide convictions when defendant, who had a blood-alcohol content of nearly twice the legal limit, veered across three lanes of traffic and struck another vehicle, killing its occupants); Brown v. State, 310 Ga. App. 285, 285-86 (1) (712 SE2d 521) (2011) (holding that evidence the defendant had a blood-alcohol concentration of 0.164 at the time when his car veered and hit a tree, killing his passenger, was sufficient to support defendant’s first-degree vehicular-homicide conviction); McGrath, 277 Ga. App. at 826-30 (1) (affirming a defendant’s conviction for vehicular homicide when he was under the influence of methamphetamine at the time of a car accident and rejecting his argument that the victim, who was tending to injuries at the scene of the accident, died as a result of intervening causes because she put herself in an unsafe situation and was struck by another driver who was speeding); Lyons v. State, 248 Ga. App. 59, 61 (3) (545 SE2d 614) (2001) (holding that evidence was sufficient to show that driving under the influence of alcohol was the proximate cause of the victim’s death when the defendant drank alcohol prior to the collision and then drove in poor weather conditions); Whitener v. State, 201 Ga. App. 309, 311-12 (3), (4) (410 SE2d 796) (1991) (holding that evidence was sufficient to support first-degree vehicular-homicide conviction when the defendant’s conduct of crossing the centerline of the road was a substantial factor in causing the victim’s death and noting that “[t]he victim’s failure to wear a safety belt does not bear on the criminal conduct of defendant” (punctuation omitted)).

        See U. S. Const, amend VI (“In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.”); see also Ga. Const, art. 1, § 1, ¶ XIV (“Every person charged with an offense against the laws of this state... shall be confronted with the witnesses testifying against such person.”).

       The State argues that Hartzler waived this claim of error because the trial transcript does not reflect that he specifically objected to the testimony regarding his blood-alcohol content on the basis that it violated the Confrontation Clause. However, in its order denying Hartzler’s motion for a new trial, the trial court noted that the defense had indeed made a “lengthy objection” to this testimony in chambers, that it was not made part of the record, and that the basis for the objection was both hearsay and a violation of the Confrontation Clause. Thus, like the trial court, we find that the issue was timely raised at trial, and therefore, preserved for appeal. See Vanstavern v. State, 293 Ga. 123, 124 (2) (744 SE2d 42) (2013); Stacey v. State, 292 Ga. 838, 843 (4) (741 SE2d 881) (2013).

        Adams v. State, 316 Ga. App. 1, 3 (1) (728 SE2d 260) (2012) (punctuation omitted).

       541 U. S. 36 (124 SCt 1354, 158 LE2d 177) (2004).

        Hester v. State, 283 Ga. 367, 370 (4) (659 SE2d 600) (2008) (punctuation omitted); accord Cuyuch v. State, 284 Ga. 290, 291-92 (2) (667 SE2d 85) (2008).

        Cuyuch, 284 Ga. at 291-92 (2) (punctuation omitted), citing Davis v. Washington, 547 U. S. 813, 822 (126 SCt 2266, 165 LE2d 224) (2006).

        Cuyuch, 284 Ga. at 292 (2) (punctuation omitted); accord Sanford v. State, 287 Ga. 351, 354 (3) (695 SE2d 579) (2010).

        Bowling v. State, 289 Ga. 881, 888 (3) (717 SE2d 190) (2011); see also Melendez-Diaz v. Massachusetts, 557 U. S. 305, 312 (III) n.2 (129 SCt 2527, 174 LE2d 314) (2009) (noting that medical records for treatment purposes are not testimonial in nature).

        Bowling, 289 Ga. at 887 (3); see Dunn v. State, 292 Ga. App. 667, 671 (1) (665 SE2d 377) (2008) (explaining that, when a physician orders a blood test for a patient, the physician’s diagnosis is testimonial, but the lab results are not “statements” in any meaningful sense); see also Hester, 283 Ga. at 371-72 (4) (holding that a paramedics interrogation of an injured person did not produce testimonial statements because the statements were made for the purpose of medical diagnosis or treatment and there was no indication that the information was being collected for a potential criminal prosecution); Freeman v. State, 328 Ga. App. 756, 759 (2) (760 SE2d 708) (2014) (same).

        See Hester, 283 Ga. at 370 (4) (“[Statements] are testimonial when the circumstances objectively indicate that there is no... ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (punctuation omitted; emphasis supplied)); Cuyuch, 284 Ga. at 292 (2) (same); Rackoff v. State, 281 Ga. 306, 309 (2) (637 SE2d 706) (2006) (holding that an inspection certificate showing breath-test results, which was prepared pursuant to a Georgia statute in the regular course of business, was not testimonial hearsay under Crawford because it was not generated in anticipation of the prosecution of a particular defendant).

        See Bowling, 289 Ga. at 887-88 (3) (holding that admission of defendant’s medical records did not violate the Confrontation Clause when they were prepared for the primary purpose of facilitating his medical care); see also Dixon v. State, 227 Ga.App. 533, 536-37 (4) (489 SE2d 532) (1997) (holding that, because hospital records showing the defendant’s blood test results were properly admitted under the business-records exception to the hearsay rule, it bore the “indicia of reliability’ sufficient to satisfy the Confrontation Clause, even when the defendant was not given the opportunity to cross-examine the person who performed the test). We note that, once a determination is made that a statement is nontestimonial for purposes of the Confrontation Clause, the statement is “admissible if it falls under one or more exceptions to the rule against hearsay.” Owens v. State, 329 Ga.App. 455, 458(1) (b) (765 SE2d 653) (2014); see Glover v. State, 285 Ga. 461, 462 (2) (678 SE2d 476) (2009) (“Once a determination is made that a statement is nontestimonial in nature, normal rules regarding the admission of hearsay apply” (punctuation omitted)). In this case, Hartzler’s medical records were admitted under the business-records exception to the rule against hearsay, and he does not challenge that ruling on appeal. Thus, we do not address whether the records constituted inadmissible hearsay. Jackson v. State, 316 Ga.App. 128, 132 (3) (728 SE2d 774) (2012) (deeming a claim abandoned when the appellant did not offer argument or citation to the record or legal authority to support it).

        See Jordan v. State, 322 Ga. App. 252, 255 (4) (a) (744 SE2d 447) (2013).

        Williamson v. State, 308 Ga. App. 473, 478 (2) (708 SE2d 57) (2011) (punctuation omitted); accord Corbin v. State, 305 Ga.App. 768, 771 (2) (700 SE2d 868) (2010); see, e.g., Foote v. State, 265 Ga. 58, 60-61 (2)-(3) (455 SE2d 579) (1995).

        See supra notes 9 & 11.

        See Fletcher, 307 Ga. App. at 132 (2) (a) (explaining that “[a]s opposed to the civil context, in which compensating deserving victims is the aim, in the criminal context it simply is not relevant that the victim was negligent, unless the defendant’s conduct did not substantially contribute to the cause of death” (punctuation omitted)); accord Corbett v. State, 277 Ga. App. 715, 718 (1) (b) (627 SE2d 365) (2006); see also McGrath, 277 Ga. App. at 832 (3) (“[I]n the criminal context, the victim’s negligence is not relevant unless the defendant’s conduct did not substantially contribute to the cause of the injury.”).

        See Williamson, 308 Ga. App. at 479 (2) (rejecting defendant’s challenge to a jury charge when it fully covered the relevant law); Corbin, 305 Ga. App. at 771 (2) (same).

        Robinson v. State, 267 Ga. App. 634, 636 (2) (600 SE2d 729) (2004) (punctuation omitted); see Rouse v. State, 296 Ga. 213, 224 (1) (c) (765 SE2d 879) (2014) (noting that OCGA § 17-8-57 is “violated only when the trial court’s instruction, considered as a whole, assumes certain things as facts and intimates to the jury what the judge believes the evidence tobe” (punctuationomitted)); Johnson v. State, 289 Ga. 650, 653(2) (715 SE2d 99) (2011) (noting that jury instructions must be read as a whole).

        Jones v. State, 281 Ga. 758, 759 (2) (642 SE2d 816) (2007); see Sedlak v. State, 275 Ga. 746, 748-49 (2) (d) (571 SE2d 721) (2002) (holding that the trial court’s reference to the deceased as “the victim” in the course of charging the jury did not constitute an expression of opinion as to the guilt of the accused).

        See Sedlak, 275 Ga. at 748-49 (2) (d) (holding that, when the trial court instructed the jury not to construe any comment made by the court as an expression of opinion of the guilt or innocence of the accused, there was neither error nor a reasonable probability that the reference to the decedent as “the victim” prejudiced the defense).

        See id.


author: McFADDEN, Judge.

text:
    A15A0397.
    PARRISH v. CHRYSLER FINANCIAL SERVICES AMERICAS, LLC.
    (774 SE2d 746)
   McFADDEN, Judge.

John T. Parrish appeals the grant of summary judgment to Chrysler Financial Services Americas, LLC, in its suit for a deficiency judgment. Because the record is devoid of evidence that Chrysler satisfied all of the statutory notice provisions of OCGA § 10-1-36 (a), which are required for Chrysler to recover a deficiency judgment against Parrish, we reverse.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). This court applies a de novo review to a grant of summary judgment, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmovant. Versey v. Citizens Trust Bank, 306 Ga. App. 479-480 (702 SE2d 479) (2010).

So viewed, the evidence showed that Chrysler repossessed a vehicle as the result of Parrish’s alleged default on a retail installment contract with Chrysler’s predecessor-in-interest. (Parrish denied that he was in default.) Chrysler subsequently sent Parrish by certified mail a notice of its intention to pursue a deficiency claim. Chrysler sold the vehicle at auction for less than the balance due on Parrish’s account, leaving a deficiency. Chrysler brought this action to recover that deficiency.

Parrish correctly argues that nothing in this evidence establishes the date on which Chrysler repossessed his vehicle. The only reference in the record to the date of repossession occurs, without citation to evidence, in Chrysler’s portion of a consolidated pre-trial order.

The specific date of repossession is critical to determining whether Chrysler met the statutory notice requirements for obtaining a deficiency judgment following repossession. OCGA § 10-1-36 (a) provides in pertinent part:

When any motor vehicle has been repossessed after default . . . , the seller or holder shall not be entitled to recover a deficiency against the buyer unless within ten days after the repossession he or she forwards by registered or certified mail or statutory overnight delivery to the address of the buyer shown on the contract or later designated by the buyer a notice of the seller’s or holder’s intention to pursue a deficiency claim against the buyer.

Decided June 30, 2015.

James A. Yancey, Jr., for appellant.

MacDowell & Associates, Alexander J. Zubrowski, for appellee.

(Emphasis supplied.) Without establishing the date of repossession, Chrysler cannot show that it timely sent the required notice.

Chrysler argues that the burden fell on Parrish to produce evidence of the date of repossession to avoid summaryjudgment. This is incorrect. A plaintiff seeking summary judgment “has the burden of presenting evidence to support [its] claim[.]” State of Ga. v. Rozier, 288 Ga. 767, 768 (707 SE2d 100) (2011) (citations omitted). Satisfaction of the statutory notice provisions is an essential element of Chrysler’s claim for a deficiency judgment. See Versey, 306 Ga. App. at 481 (1) (“A creditor’s failure to comply with the notice provisions of OCGA § 10-1-36 is an absolute bar to recovery of a deficiency judgment.”) (citation omitted); Beacham v. Calvary Portfolio Svcs., 304 Ga. App. 37, 38 (695 SE2d 368) (2010) (same). Because Chrysler did not present evidence to show that it satisfied the notice requirements of OCGA § 10-1-36, it was not entitled to summary judgment. See Beacham, 304 Ga. App. at 37 (reversing trial court’s grant of summary judgment to plaintiff seeking deficiency judgment because plaintiff failed to produce evidence that its predecessor-in-interest timely served defendant notice required under OCGA § 10-1-36).

Judgment reversed.

Ellington, P. J., and Dillard, J., concur.


text:
    A15A0182.
    COTTINGHAM & BUTLER, INC. et al. v. BELU et al.
    (774 SE2d 747)
   Boggs, Judge.

Aron and Lidia Belu, d/b/a Express Auto Transport, sued their insurance agents, Cottingham & Butler, Inc. and Cottingham & Butler Insurance Services, Inc. (collectively, “C&B”), for negligence and breach of contract in connection with their purchase of an insurance policy. C&B subsequently moved for summary judgment. The trial court denied the motion, and we granted C&B’s application for interlocutory review. For reasons that follow, we affirm.

Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. See Rogers & Sons v. Santee Risk Managers, 279 Ga. App. 621, 622 (631 SE2d 821) (2006). On appeal, we review a trial court’s summary judgment ruling de novo, construing the evidence and all reasonable inferences in the light most favorable to the nonmovant. See id.

So viewed, the evidence shows that the Belus emigrated to the United States from Romania in 1986. Once in America, they obtained commercial driver’s licenses, bought a truck, and began driving for various companies. In 2002, the Belus formed their own truck driving business, Express Auto Transport (“Express Auto”), with Mr. Belu and Mrs. Belu’s brother driving the trucks, and Mrs. Belu handling office duties.

At some point, Mrs. Belu called C&B and “asked them to sell [her] all the coverage” that she and her husband needed to protect their business. She told C&B that they “wanted a policy which covers everything, the trucks, the cars, the cargo . . . physical damage, liability, general liability, everything.” Mrs. Belu, however, did not request particular coverage because she was not an expert. Instead, C&B’s representative told her what she needed, and she purchased the recommended coverage. According to Mrs. Belu:

When we were getting our insurance, [the C&B representative] would ask me “What kind of business you do?” and then tell me “You need this, and this, and this, and then you are covered, don’t worry.” He would tell me what I need in this kind of business.

C&B procured several policies for the Belus, including a cargo insurance policy issued by Underwriters at Lloyd’s, London (“Lloyd’s”). Mrs. Belu testified that she looked over the policies and is “pretty sure” she read them, but cannot remember “a hundred percent.” Mr. Belu did not read the policies in their entirety.

In December 2007, while the Belus were insured by the Lloyd’s cargo policy, a truck carrying a load of vehicles for Express Auto caught fire, damaging the vehicles. The vehicle owners sued Express Auto, and the Belus filed a claim under the cargo policy. Although Lloyd’s eventually paid the Belus a certain amount to settle the lawsuits, it refused to assume the cost of defense. To support this refusal, Lloyd’s cited the following policy provision:

PRIVILEGE TO ADJUST WITH OWNER — In the event of loss or damage to property of others held by the Insured for which claim is made upon the Underwriters the right to adjust such loss or damage with the owner or owners of the property is reserved to the Underwriters and the receipt of such owner or owners in satisfaction thereof shall be in full satisfaction of any claim of the Insured for which such payment has been made. If legal proceedings be taken to enforce a claim against the Insured as respects any such loss or damage, the Underwriters reserve the right at their option without expense to the Insured, to conduct and control the defense on behalf of and in the name of the Insured. No action of the Underwriters in such regard shall increase the liability of the Underwriters under this Policy, nor increase the limits of liability specified in the Policy.

(Emphasis supplied.)

Lloyd’s filed a declaratory judgment action in federal district court, seeking a determination that it had no duty to defend the Belus in the lawsuits. See Certain Underwriters at Lloyd’s, London v. Belu, 2009 U. S. Dist. LEXIS 77282, at *5 (N.D. Ga. 2009). Based on the provision quoted above, the district court found that “the unambiguous language of the policy plainly means that the insurer has the option not to provide a defense.” Id. at *12. It thus concluded that Lloyd’s was not required to defend the Belus. See id.

Following the district court’s ruling, the Belus sued C&B, alleging that it failed to procure adequate insurance coverage that included a duty to defend. C&B moved for summary judgment. It argued that the Belus were obligated to read the policy and, if they had, they would have known that Lloyd’s had the option — not a duty — to defend them against any claims. The trial court denied the motion, but issued a certificate of immediate review. We granted C&B’s interlocutory application, and this appeal followed.

1. As a general rule, an insurance agent who procures insurance, but fails to obtain all of the requested coverage, is insulated from liability if the insured does not read the policy. See Turner, Wood & Smith v. Reed, 169 Ga. App. 213, 214 (311 SE2d 859) (1983). This is because an insured has a duty to read and examine an insurance policy to determine whether it provides all of the coverage sought. See Traina Enterprises v. Cord & Wilburn, Inc., 289 Ga. App. 833, 837 (2) (658 SE2d 460) (2008). The general rule, however, has several exceptions, including:

[Wjhen the agent has held himself out as an expert and the insured has reasonably relied on the agent’s expertise to identify and procure the correct amount or type of insurance, unless an examination of the policy would have made it readily apparent that the coverage requested was not issued.

(Citation, punctuation and footnote omitted.) Id.

The Belus argued below, and the trial court found, that regardless of whether they read the Lloyd’s policy, questions of fact remain as to their reliance on C&B’s expertise in identifying and procuring adequate insurance for them. C&B challenges this finding on appeal, asserting that it was entitled to summary judgment because, as a matter of law, it never offered expert advice to the Belus. We disagree.

C&B asserts that an insurance agency does not hold itself out as an expert unless it “behave [s] more like a business partner with the insured: auditing a company, analyzing their needs, and recommending a course of action.” It is true that, in several cases cited by C&B, the insurance agency reviewed business audits and financial information in connection with coverage recommendations. See, e.g., Wright Body Works v. Columbus Interstate Ins. Agency, 233 Ga. 268, 271 (210 SE2d 801) (1974) (insurance agency reviewed annual business audits of insured to determine whether insurance policies were sufficient); Jim Anderson & Co. v. ParTraining Corp., 216 Ga. App. 344, 345 (1) (454 SE2d 210) (1995) (insurance agency reviewed insured’s financial information to ascertain appropriate coverage and had discretion to adjust coverage). Our case law, however, does not limit the expertise exception to the narrow scope suggested by C&B.

In McCoury v. Allstate Ins. Co., 254 Ga. App. 27, 29 (2) (561 SE2d 169) (2002), for example, we found that an insurance agent was not entitled to summary judgment on a negligent procurement claim because the insured parties offered evidence that they relied on the agent’s expertise in determining whether coverage was adequate. And in Hunt v. Greenway Ins. Agency, 213 Ga. App. 14, 15 (443 SE2d 661) (1994), summary judgment for the insurance agency was appropriate when the insured presented “no evidence that the agent had any discretion in the type of insurance procured or that the proposed insured relied on the agent to decide what type of insurance was needed.” Nothing in these or similar cases restricts the expertise exception to situations involving the equivalent of a business partnership between the insured and the insurance agency, or requires that an insured “turn[ ] his business records over to an agent,” as C&B contends. On the contrary, the exception applies when an insurance agent “has undertaken to perform an additional service,” beyond merely procuring specified insurance, “such as determining the amount of insurance required, and the insured relies upon the agent to perform that service.” Fregeau v. Hall, 196 Ga. App. 493, 494 (396 SE2d 241) (1990).

The Belus presented at least some evidence that they relied on C&B to assess their insurance needs in this case. According to Mrs. Belu, she did not request any particular amount of coverage. She depended upon a C&B representative to determine the type and amount of insurance Express Auto needed. And once the representative made that determination, he instructed her not to worry because she was “covered.” Although C&B claims that it simply procured insurance for the Belus, this evidence raises questions of fact as to whether the agency went beyond mere procurement and offered expert advice upon which the Belus relied. See McCoury, supra; compare Traina, supra, 289 Ga. App. at 838 (2) (no evidence of reliance on insurance agency’s expertise where insured calculated amount and type of insurance needed and did not authorize agent to assess these needs, offer recommendations, or adjust coverage); Brasington v. King, 167 Ga. App. 536, 538 (1) (307 SE2d 16) (1983) (no expertise exception where agent did not “complete any analysis of plaintiff’s insurance needs”), aff’d, King v. Brasington, 252 Ga. 109 (312 SE2d 111) (1984); Ethridge v. Associated Mutuals, 160 Ga. App. 687, 689 (288 SE2d 58) (1981) (expertise exception did not apply where insured told agent amount and type of coverage he desired, leaving no discretion to agent).

2. Alternatively, C&B argues that the absence of a duty to defend was readily apparent on the face of the cargo policy, precluding recovery. As noted by C&B, the expertise exception only relieves the insured “of the responsibility to minutely examine the policy.” (Citations and footnote omitted.) MacIntyre & Edwards, Inc. v. Rich, 267 Ga. App. 78, 81 (1) (599 SE2d 15) (2004). Thus, if examination of the policy would have made it “readily apparent that the insured did not get the coverage he requested, the duty to read will still bar a lawsuit against the agent even if the insured relied upon the agent’s expertise.” (Citations and footnote omitted.) Id.

According to C&B, the Belus’ policy clearly and unambiguously provided Lloyd’s with an option to defend, rather than a duty to defend. Undoubtedly, the absence of such duty may be inferred from the policy language giving Lloyd’s the “option without expense to the insured to conduct and control the defense on behalf of and in the name of the Insured.” But the lack of duty is not specifically stated, only implied. Moreover, the provision at issue is located in the middle of a paragraph entitled “PRIVILEGE TO ADJUST WITH OWNER”, and is combined with a different provision, Lloyd’s stated intention to “conduct and control the defense without expense to the insured.” Neither the paragraph nor its heading explicitly references or excludes a duty to defend, and Mrs. Belu testified that she did not understand the operative language.

Decided July 1, 2015

McMickle, Kurey & Branch, Scott W. McMickle, Stephanie F. Brown, for appellants.

Jack F. Witcher, Daniel B. Greenfield, for appellees.

We recognize that the federal district court adjudicating Lloyd’s declaratory judgment action found that the policy language unambiguously gave Lloyd’s the option not to defend the Belus as a matter of law. See Belu, supra. But even if the option language was found to be unambiguous, the key inquiry is not whether a court or an insurance expert could determine the import of the provision. Rather, here we must consider whether “it would have been readily apparent to a layman reading the insurance policy, based upon the plain and ordinary meaning of clear and unambiguous language, that the risk causing the loss was not covered.” (Citations omitted.) Atlanta Women’s Club v. Washburne, 207 Ga. App. 3, 5 (427 SE2d 18) (1992). Given the phrasing of the option language, its location in the middle of a paragraph entitled “Privilege to Adjust with Owner,” and Mrs. Belu’s testimony that she did not fully comprehend the paragraph, we agree with the trial court that a jury question remains on this issue. See Jim Anderson & Co., supra, 216 Ga. App. at 345-346 (2) (jury question remained as to whether lack of coverage was readily apparent); compare Rogers, supra, 279 Ga. App. at 627 (2) (lack of coverage for machinery was readily apparent, given separately listed policy language, in large print, that explicitly and repeatedly drew insured’s attention to coverage requirement); MacIntyre & Edwards, supra, 267 Ga. App. at 81 (1) (policy change was readily apparent when renewal endorsement outlined changes, accompanying memorandum offered further explanation, as well as bold-faced type drawing insured’s attention to change, and insured, an insurance executive, admitted he would have understood the change had he read the renewal information). Accordingly, the trial court properly denied C&B’s motion for summary judgment.

Judgment affirmed.

Ray and McMillian, JJ., concur.

       “Other exceptions lie where an agent intentionally misrepresents the existence or extent of coverage or where the evidence reflects a special relationship of trust or other unusual circumstances which would have prevented or excused plaintiff of his duty to exercise ordinary diligence to ensure that no ambiguity existed between the requested insurance and that which was issued.” (Citation, punctuation and footnote omitted.) Id.