author: Branch, Judge. RAY, Judge,

text:
    A12A1667.
    GARCIA v. SHAW INDUSTRIES, INC.
    (741 SE2d 285)
   Branch, Judge.

Karina Garcia appeals from the trial court’s grant of summary judgment to her former employer, Shaw Industries, Inc. She contends the trial court erred in granting summary judgment because genuine issues of material fact remain as to her claim for intentional infliction of emotional distress, and she argues that her defamation claim is not barred by the statute of limitation. For the reasons that follow, we affirm.

On appeal from a grant of summary judgment, this Court reviews the evidence de novo, viewing it in the light most favorable to the nonmoving party, to discern whether a genuine issue of material fact remains or whether the moving party is entitled to judgment as a matter of law. Smith v. Lott, 317 Ga. App. 37, 37 (730 SE2d 663) (2012).

Garcia is not a United States citizen, but she entered the country legally with a border-crossing card. She was not authorized to work in the United States, but she obtained employment at a company called Modern Fibers using the name, Social Security number, and other personal information of Cristal Sanchez, a United States citizen whose identity Garcia paid $400 to use. When Shaw purchased Modern Fibers, Garcia reapplied for her job, again under the Sanchez name. She consistently indicated on all applicable employment forms that her name was Sanchez.

In March 2007, Garcia slipped and fell at work, injuring her back and knees. After treatment, she returned to light-duty work with some restrictions, and Shaw’s third-party administrator, Gallagher Bassett, filed an initial claim with the Georgia State Board of Workers’ Compensation (the “Board”). Garcia later retained a lawyer because she thought she had to wait too long for doctors’ appointments, and this attorney on July 26, 2007, filed a Form WC-14 notice of claim with the Board and copied Shaw and Gallagher Bassett at that time; that form gives Garcia’s first name as “Karina” and her last name as “Garcia aka Cristal Sanchez.” The Board then opened a separate claim file.

Garcia became eligible for temporary partial disability (“TPD”) benefits because she was earning less at her light-duty job, and Gallagher Bassett began paying those benefits in checks made out to “Cristal Sanchez.”

In December 2007, without challenging Garcia’s back injury, Shaw requested a hearing regarding benefits for Garcia’s other injuries, and Shaw hired attorney Robert Ryan to handle that dispute. Ryan saw that on a WC-14 notice of claim Garcia gave her name as “Karen Garcia a/k/a Cristal Sanchez” and that she had requested that she be assigned a Social Security number; he therefore served discovery on her asking if she was a United States citizen and if she was authorized to work in the United States. Garcia refused to respond and invoked the Fifth Amendment. Ryan arranged a follow-up deposition, which was held on February 26, 2008, at which Garcia revealed that the name and Social Security number she provided to Shaw were not hers; she refused to provide additional clarification.

Consequently, on March 5, 2008, Shaw discharged Garcia, following which Ryan told Garcia’s attorney that Shaw would continue to provide medical benefits and TPD income benefits, but would not provide temporary total disability (“TTD”) income benefits, because Shaw believed that Garcia’s inability to work was due to her immigration status rather than her injury. Garcia later admitted that after her discharge, she continued to tell potential employers that she was authorized to work in the United States despite the fact that she had never been authorized to do so and that her authority to be in the United States had expired. Garcia also admitted that after her termination she continued to identify herself under the assumed identity when applying for jobs.

In December 2008, Ryan heard the director of the Enforcement Division of the Workers’ Compensation Board speak at a seminar about the issue of the use of false identity by illegal aliens, following which Ryan spoke to Shaw about Garcia’s case. In March 2009, one year after discharging Garcia, Shaw filed a complaint with the fraud and compliance unit of the Board. See OCGA § 34-9-24 (establishing the fraud and compliance unit). The complaint states that “this is a case of suspected identity theft and a case of suspected misrepresentation” and that Garcia had “willfully made false and misleading representation [s] for the purpose of obtaining workers’ compensation benefits.” Shaw “respectfully request [ed] that the Board review this matter to determine if the Claimant has committed workers’ compensation fraud.” The complaint stated the history of Garcia’s employment as Cristal Sanchez and how Shaw was paying her workers’ compensation benefits under that name. The complaint also mentioned a WC-14 dated December 20, 2007, and highlighted how the plaintiff gave her name as “Karina Garcia a/k/a Cristal Sanchez” on that form. At her deposition in this lawsuit Garcia admitted that all the factual assertions in the complaint that Shaw filed were true.

At some point, Shaw, on request from the Board’s fraud unit, provided the division with a copy of Garcia’s file. And approximately one year after Ryan filed the complaint for Shaw, someone from the Board’s fraud unit contacted Ryan to say that she had warrants for Garcia’s arrest. She asked Ryan if there were any upcoming hearings or depositions so that they could locate Garcia, and Ryan told her about the upcoming April 8, 2010 deposition. Garcia was arrested on warrants signed by a magistrate judge for forgery and possession of a fraudulent document on April 8, 2010, as she was leaving her attorney’s office after the deposition. On September 9, 2010, Garcia filed the action that led to this appeal.

1. Garcia contends the trial court erred in granting summary judgment to Shaw as to Garcia’s claim for intentional infliction of emotional distress. Specifically, she argues that there is evidence from which a reasonable person could find that Shaw set her up for arrest causing her severe emotional distress sufficient to create a claim of intentional infliction of emotional distress. Although we do not condone Shaw’s conduct, we conclude that it does not rise to the level of extreme and outrageous conduct necessary to sustain a claim of intentional infliction of emotional distress.

(a) We first address Shaw’s contention that its actions in filing the fraud complaint were protected from liability under OCGA § 34-9-24, a provision of the Workers’ Compensation Act that provides a safe harbor for persons who “[i]n the absence of fraud or malice” furnish the Board with information regarding suspected fraud:

In the absence of fraud or malice, no person or entity who furnishes to the board information relevant and material to suspected fraud under or noncompliance with the workers’ compensation laws of this state shall be liable for damages in a civil action or subject to criminal prosecution for the furnishing of such information.

OCGA § 34-9-24 (d).

Here, Garcia admits that the allegations contained in Shaw’s complaint are true, and therefore it is undisputed that Shaw did not commit fraud when it filed its complaint. And both Ryan, the attorney Shaw hired in connection with Garcia’s workers’ compensation issues, and Melinda Majors, the workers’ compensation analyst in Shaw’s risk management department, testified that they were not motivated to file the complaint by malice or ill will against Garcia. Rather, although Shaw made clear that it would continue to provide medical benefits and TPD income benefits to Garcia, it was concerned about Garcia’s future eligibility for TTD income benefits because Shaw believed that her inability to work was due to her immigration status rather than to her injury. When “sworn testimony evidences [a party’s] good faith in filing [a] complaint” the opposing party “cannot rest upon his allegations or denials but is cast with the burden of showing there was a genuine issue for trial.” (Citation and punctuation omitted.) Farrar v. Macie, 297 Ga. App. 192, 195 (3) (676 SE2d 840) (2009). Garcia has offered little more than rhetoric in her attempt to carry that burden.

Garcia describes her case of intentional infliction of emotional distress as being based on the following assertions: that Shaw knew well before it filed the complaint that Garcia was operating under an assumed identity; that Shaw continued to pay Garcia workers’ compensation benefits payments under the Sanchez name, anyway; that Shaw filed the complaint days after Garcia found out she might need back surgery; that Shaw failed to disclose to the Board that it possessed a copy of the earliest WC-14 showing Garcia had an alias; that Shaw’s attorney lured her into a deposition so that she could be arrested, and perhaps, deported; and that the arrest was “set up” at Shaw’s request.

First, even if it is true that Shaw knew that Garcia had an alias and that Shaw was paying Garcia under the wrong name, it is not malice for Shaw to want to bring Garcia’s possible illegal behavior to an end. Second, Garcia offers no evidence to show that Shaw knew at the time it filed the complaint that Garcia’s medical condition had worsened. Third, the fact that Shaw’s counsel may have told the investigator from the workers’ compensation fraud unit where Garcia could be found in order that she be arrested is not evidence of malice. The investigator could have found Garcia’s whereabouts in many other ways. Assisting law enforcement by providing readily available information does not amount to malice. And finally, Garcia’s rhetoric that Shaw “set up” her arrest is belied by the fact that the arrest was the result of a truthful complaint, an investigation by the fraud unit, and a warrant authorized by a magistrate court judge. Not even the dissent disputes that the charges against Garcia were authorized based on her conduct. Thus, we are tempted to conclude that Garcia failed to carry her burden of showing that there was a genuine issue for trial regarding Shaw’s alleged malice.

(b) But pretermitting whether Shaw could be protected from liability by OCGA § 34-9-24 or other immunity law, a claim of intentional infliction of emotional distress requires a showing of “extreme and outrageous conduct,” which means much more than malice:

It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

(Punctuation omitted; emphasis supplied.) Bowers v. Estep, 204 Ga. App. 615, 618 (2) (420 SE2d 336) (1992), citing Restatement (Second) of Torts, § 46, comment d. In this case, as a matter of law Shaw’s actions do not amount to extreme and outrageous conduct.

“Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.” (Citation and punctuation omitted.) Frank v. Fleet Finance, Inc. of Ga., 238 Ga. App. 316, 318 (518 SE2d 717) (1999). See also Racette v. Bank of America, 318 Ga. App. 171, 179 (3) (733 SE2d 457) (2012) (same).

When Shaw filed an administrative fraud complaint with the Georgia State Board of Workers’ Compensation, it truthfully and accurately related the facts, as Garcia has admitted. Garcia had been discharged from Shaw a year earlier, and there is no evidence that Shaw had any continuing contact with Garcia or any animus or ill will. Instead, Shaw had reason to believe that Garcia was falsifying her identity and lying about her authorization to work in the United States. Shaw may have also desired to shed a light on Garcia’s fraudulent behavior in the hopes that it might affect its liability for continuing workers’ compensation benefits, but the fact remains that when it made its report to the Board, Shaw had a well-formed basis to believe that Garcia was engaging in illegal conduct. In light of its fully accurate report of Garcia’s misconduct, Shaw’s decision to report a suspected crime, even if motivated by a desire to limit its future workers’ compensation exposure, cannot be said to be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

The case of Fleming v. U-Haul Co. of Ga., 246 Ga. App. 681 (541 SE2d 75) (2000), is distinguishable because in that case the plaintiff presented some evidence that the defendant lacked a good faith basis for swearing out an arrest warrant. In Fleming, the plaintiff made two telephone calls to U-Haul to report that his rented truck had broken down on Interstate 20 and to give his name, location, and the contract number. Id. Despite being told in each call that someone was coming to assist, no one showed up for one hour and forty minutes, whereupon the plaintiff left the keys in the truck (not in the ignition), hitchhiked home, and had no further contact with U-Haul. Id. Sometime thereafter, U-Haul swore out a warrant for the plaintiff’s arrest, and the plaintiff was eventually arrested and spent eight days in j ail. Id. at 682. The plaintiff was indicted for theft by conversion, but U-Haul later dismissed the charge because the truck had been recovered and U-Haul did not wish to pursue the case. Id.

This Court held that the dismissal of the case was some evidence that probable cause was lacking; that the jury would be authorized to find that U-Haul “negligently failed to ascertain the complete state of facts or recklessly failed to present them fully and fairly to the magistrate who issued the arrest warrant”; and that a jury could conclude that U-Haul “wantonly disregarded [the plaintiff’s] rights in swearing out an arrest warrant. . . [after the plaintiff] informed U-Haul’s agents [the truck] was stalled, after the twice-promised roadside assistance never materialized.” Fleming, supra at 683-684. Here, it is undisputed that Shaw provided fully accurate information in the complaint, and there is no suggestion that probable cause for Garcia’s arrest was lacking.

For the reasons discussed in Division 1 (b), a rational jury could not reasonably conclude that Shaw acted in an extreme and outrageous manner when it filed a complaint with the Board that led a government agency to investigate and, eventually, arrest Garcia. Accordingly Garcia’s claim of intentional infliction of emotional distress must fail.

2. Garcia next argues that the trial court erred in granting summary judgment to Shaw on its allegation that her defamation claim was barred by a one-year statute of limitation.

Shaw filed the fraud complaint with the Board on March 19, 2009. On September 9, 2010, Garcia filed her defamation claim alleging that Shaw wrongfully accused her of “forgery” and “stated this to multiple other people in order to provoke these criminal charges.” Garcia’s complaint was filed about 18 months after Shaw’s complaint to the Board. OCGA § 9-3-33 provides that actions for “injuries to the reputation ... shall be brought within one year after the right of action accrues.”

Statute of limitation is an affirmative defense pursuant to OCGA § 9-11-8 (c). Thus, Shaw bore the burden on summary judgment to come forward with evidence demonstrating as a matter of law that Garcia’s alleged defamation occurred more than a year prior to the filing of her defamation action. Once Shaw did this, by pointing to the 18-month time lapse between the filing of its fraud complaint with the Board and Garcia’s filing of her defamation action, and by pointing to an absence of evidence of other defamatory acts, the burden shifted to Garcia either to show that her case fell under the continuing tort doctrine, or that the statute of limitation was tolled. This she has failed to do.

Garcia first argues that the statute of limitation had not run because she was not “fully harmed” until she was arrested on April 8, 2010, and that neither she nor her workers’ compensation attorney knew about the fraud complaint until after that arrest. This argument is unavailing. It is well established that “[a]ctions for injuries to the reputation . .. must be brought within one year from the date of the alleged defamatory acts regardless of whether or not plaintiff had knowledge of the act or acts at the time of their occurrence.”

Garcia also alleges that there is evidence that Shaw and its agents continued to defame her in the period between the submission of the fraud complaint and her arrest, but points us to no evidence in the record on this point. Rather, she alleges that she is entitled to a negative inference because Shaw’s attorney, Ryan, cited attorney-client privilege and the work-product doctrine in declining to answer deposition questions regarding Shaw’s communications with the Board and with law enforcement. Although Garcia initially filed a motion to compel Ryan’s testimony, she voluntarily withdrew it. Pretermitting whether a negative inference could obtain here, we decline to permit Garcia to pursue on appeal that which she abandoned in the trial court.

Thus, Garcia’s arguments that Shaw’s actions constituted a continuing injury are unavailing. In an analogous situation involving a defamation case related to a series of newspaper articles, we determined that the statute of limitation began to run on the last date that the news source spoke to reporters, rather than on the first date that an article in a series was published. Here, the facts do not support a claim that the purported injury was inflicted over a period of time, as the alleged defamatory publication to the Board of the fraud complaint constituted a completed act. We find no error, and affirm.

Judgment affirmed.

Andrews, P. J., Doyle, P. J., and Boggs, J., concur. Miller, P. J., Phipps, P. J., and Ray, J., concur in part and dissent in part.

RAY, Judge,

concurring in part and dissenting in part.

Because the majority opinion incorrectly finds that a rational jury could not find Shaw’s conduct either outrageous or extreme, I respectfully dissent to Division 1.1 concur fully in Division 2.

Garcia has provided evidence amply evincing a fact question for the jury on the issue of whether Shaw’s conduct in filing the fraud complaint with the Board, and in taking steps to engineer her arrest, was extreme and outrageous. First, Shaw filed the Board complaint alleging fraud when it knew or should have known that a fraud claim could not survive because an essential element necessary to support such a claim — injury — was entirely absent. Shaw’s attorney filed the fraud complaint on the company’s behalf, implying that Garcia was not entitled to workers’ compensation benefits, even though Shaw never disputed Garcia’s job-related injury or her entitlement to medical and TPD benefits. See Earth First Grading v. Gutierrez, 270 Ga. App. 328, 330 (2) (606 SE2d 332) (2004) (illegal immigration status does not bar an employee from receiving workers’ compensation benefits).

Georgia law defines the tort of fraud not only as the “willful misrepresentation of a material fact, made to induce another to act,” but also requires that the other party “act[ ] to his injury” (Footnote omitted; emphasis supplied.) Weaver v. Pizza Hut of America, 298 Ga. App. 645, 652 (3) (680 SE2d 668) (2009). Given that no one disputes Garcia’s entitlement to the benefits mentioned above, a fraud claim would necessarily fail for lack of proof of injury either to Shaw or the Board.

Further, Garcia provided other evidence showing that Shaw

engaged in intentional or reckless conduct of an extreme and outrageous nature that caused her severe emotional distress. This conduct must be of such serious import as to naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress.... And while some conduct may not rise to the requisite level of outrageousness and egregiousness as a matter of law, once the evidence shows that reasonable persons might find the presence of extreme or outrageous conduct, the jury must find the facts and make its own characterization.

(Punctuation and footnotes omitted.) Turnage v. Kasper, 307 Ga. App. 172, 182-183 (1) (c) (704 SE2d 842) (2010).

Further, a rational and impartial jury could find that Shaw acted intentionally or recklessly, and in an extreme and outrageous manner, given that its attorney filed a fraud complaint containing incomplete information that foreseeably led a government agency to instigate Garcia’s arrest. See Fleming v. U-Haul Co. of Ga., 246 Ga. App. 681, 685 (5) (541 SE2d 75) (2000) (jury could find intentional infliction of emotional distress where, despite U-Haul’s knowledge of circumstances causing defendant not to return rented truck, it nonetheless engineered his arrest).

Here, the record shows that Shaw’s attorney, Ryan, filed the fraud complaint on Shaw’s behalf and failed to reference or include a copy of the July 26,2007, Form WC-14 notice of claim Garcia had filed identifying herself under both the Garcia and Sanchez names. Garcia revealed this dual identity prior to receiving any workers’ compensation checks from Shaw’s third-party administrator. The record contains evidence that Shaw was copied on this WC-14 notice. The record also contains deposition evidence from other employees that Shaw supervisors knew of Garcia’s dual identity even before the WC-14 was filed. Additionally, the record contains evidence that when Shaw purchased Modern Fibers, where Garcia’s husband worked, Garcia reapplied for her Modern Fibers job at Shaw using the Sanchez name. Garcia deposed that the Shaw employee who helped her fill out the application told her to apply using the Sanchez name, rather than her real name.

The majority’s response to this behavior on Shaw’s part is to state: “Although we do not condone Shaw’s conduct, we conclude that it does not rise to the level of extreme and outrageous conduct necessary to sustain a claim of intentional infliction of emotional distress.” I find this response inadequate.

First, the majority falls into the same trap that caught the trial court: it chooses sides. This is an appeal from the grant of summary judgment to Shaw. We must view the evidence in the light most favorable to the nonmoving party, that is, Garcia. Viewing the facts appropriately, it is abundantly clear that a rational jury could find that Shaw acted outrageously or maliciously in inducing Garcia to cash checks it knowingly issued under her false name — then later accused her via the Board complaint of “suspected identity fraud” and “suspected misrepresentation for the purpose of obtaining workers’ compensation benefits.” Further, a rational jury could find that Shaw was complicit in perpetuating Garcia’s use of the Sanchez name when its employee encouraged her to reapply for her job under that name. Thus, any insinuation that Shaw was acting altruistically in attempting to curtail Garcia’s illegal behavior seems inconsistent with this evidence.

Even if the self-serving affidavits of Shaw’s attorney and employee stating that they bore Garcia no ill will constitute “sworn testimony [that] evidences [a party’s] good faith in filing [a] complaint” such that Garcia “cannot rest upon [her] allegations or denials but is cast with the burden of showing there was a genuine issue for trial,” (citation and punctuation omitted) Farrar v. Macie, 297 Ga. App. 192, 195 (3) (676 SE2d 840) (2009), Garcia has clearly met this burden, creating a fact question for trial.

Also, as to Shaw’s provision of incomplete information to the Board, I find it telling that, after Garcia’s arrest, her workers’ compensation lawyer obtained her prompt release from jail on her own recognizance even though Garcia was being held on $8,000 bail. He did this by providing the fraud unit’s supervisor with a copy of the Form WC-14, which Shaw never gave the Board, and which showed that Shaw knew of Garcia’s dual identity when it issued her checks under the Sanchez name. The majority’s claim that everything Shaw stated in the complaint was “true” is in itself misleading. There is ample evidence from which a jury could find that Shaw omitted a material fact from that complaint when it concealed from the Board its knowledge that Garcia was using the Sanchez name, and that even with this knowledge, it initiated payments to her under the Sanchez name — then accused her of fraud and using a false identity. Concealing a material fact constitutes fraud if Shaw was obligated to communicate that fact based upon the circumstances of the case. See Kent v. White, 238 Ga. App. 792, 793 (1) (a) (520 SE2d 481) (1999).

There also is evidence from which a jury could find that Garcia suffered severe emotional distress. Garcia deposed that after being arrested as she was leaving her lawyer’s office, she was taken to jail and not released until the next day. Because of her absence, her four school-age children had to be placed in the care of nuns. She suffered pain in her chest that frightened her, and she felt as if she were suffocating. After leaving jail, she went to the emergency room, where she was examined for signs of a heart attack or panic attack. Further, Garcia deposed that immigration agents later came to her home, frightening her and her children. The agents informed her of deportation proceedings, and told her that they had come because Ryan, Shaw’s attorney, had contacted them. These events would “naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress.” (Punctuation and footnote omitted.) Turnage, supra at 183 (1) (c). Accord Gordon v. Frost, 193 Ga. App. 517, 520-522 (1) (388 SE2d 362) (1989) (concluding that the eight or nine hours plaintiff spent in jail would naturally give rise to the emotions necessary to support a claim).

The causal link between Garcia’s emotional distress and Shaw’s conduct is clear. See Turnage, supra at 188 (2). The evidence shows that Luanne Clarke, an attorney practicing with Shaw’s outside law firm, when asked if her firm had anything to do with Garcia’s arrest, deposed that the arrest took place “at the request of a client.” Further, Shaw’s attorney, Ryan, deposed that his filing of the fraud complaint on Shaw’s behalf led to the Board’s investigation. That investigation logically led to the Board’s fraud unit swearing out the warrants that led to Garcia’s arrest. Here, the evidence clearly presents a fact question for the jury as to whether there was a causal connection between Shaw’s actions and Garcia’s allegation of emotional distress.

Decided March 29, 2013

Brent J. Savage, Brent Jamieson Savage, Jr., for appellant.

Elarbee, Thompson, Sapp & Wilson, Stanford G. Wlson, Amy S. Auffant, Porsche D. Leonce, Wiliam D. Deveney, for appellee.

Finally, although the majority analyzes whether OCGA §§ 34-9-24 (d) and 51-5-7 provide a safe harbor protecting Shaw from Garcia’s claims, it fails, ultimately, to decide the issue. To qualify for these protections, Shaw must have acted “[i]n the absence of fraud or malice,” OCGA § 34-9-24 (d), or “in good faith.” See OCGA § 51-5-7.1 believe neither Code section protects Shaw. From the facts outlined above, a rational jury assuredly could find evidence of fraud, bad faith, or malice on Shaw’s part, barring the company from the protections of OCGA §§ 34-9-24 (d) and 51-5-7.

I am authorized to state that Presiding Judge Miller and Presiding Judge Phipps join in this dissent as to Division 1.

       But Garcia deposed that the Shaw employee who helped her fill out the application told her to apply using the Sanchez name, rather than her real name.

       Garcia filed multiple WC-14 forms, and it is unclear to which, one Ryan was referring.

       OCGA § 51-5-7 provides in part:
      The following communications are deemed privileged: (1) Statements made in good faith in the performance of a public duty; (2) Statements made in good faith in the performance of a legal or moral private duty; (3) Statements made with a good faith intent on the part of the speaker to protect his or her interest in a matter in which it is concerned; (4) Statements made in good faith as part of an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern, as defined in subsection (c) of Code Section 9-11-11.1;. . .

       “The elements of a cause of action for intentional infliction of emotional distress are: (1) intentional or reckless conduct; (2) that is extreme and outrageous; (3) a causal connection between the wrongful conduct and the emotional distress; and (4) severe emotional distress.” Ferrell v. Mikula, 295 Ga. App. 326, 333 (3) (672 SE2d 7) (2008).

        Realty World-Druid Realty v. Hooper Properties, 191 Ga. App. 773, 774 (1) (b) (383 SE2d 164) (1989).

       Id.

       (Citation and punctuation omitted.) Brewer v. Schacht, 235 Ga. App. 313, 317 (4) (a) (509 SE2d 378) (1998) (statute of limitation began to run when allegedly defamatory report was submitted at an open meeting, rather than when plaintiff’s injury occurred). Accord Cunningham v. John J. Harte Assocs., Inc., 158 Ga. App. 774, 775 (282 SE2d 219) (1981) (statute of limitation began to run when written report was submitted to county, not from date of injury).

       See, e.g., Peterson v. Baumwell, 202 Ga. App. 283, 285 (2) (414 SE2d 278) (1991) (failure to oppose motion to compel amounts to “acquiescence by silence” and waives right to appeal, as a party may not complain of a judgment or ruling his own conduct aided in causing).

        Torrance v. Morris Publishing Group, 281 Ga. App. 563, 566 (1) (636 SE2d 740) (2006) (libel is published when it is communicated to any person other than the party libeled); Scouten v. Amerisave Mtg. Corp., 283 Ga. 12, 73 (1) (656 SE2d 820) (2008) (publication of slander or oral defamation occurs upon communication to anyone other than the person slandered).

       See Cunningham, supra at 774.

       Although the majority expends some effort in outlining Shaw’s argument that Garcia is not entitled to TTD benefits because her inability to work is caused by her status as an unauthorized worker, rather than by her injury, this recitation is utterly irrelevant. Garcia’s eligibility for TTD benefits is not before us on appeal.


source: Caselaw Access Project

author: MILLER, Presiding Judge.

license: Public Domain

text:
    A12A1884.
    JOHNSON v. BARTLEY et al.
    (741 SE2d 275)
   MILLER, Presiding Judge.

Lennisha Johnson appeals the trial court’s order granting summary judgment to Bristol West Insurance Company, challenging the court’s conclusion that the insurance policy issued by Bristol West to Johnson’s father did not provide uninsured motorist coverage for injuries she sustained in a 2010 automobile accident. We conclude that Johnson was not an insured person under the policy at the time of the accident and therefore affirm.

In order to prevail on a motion for summary judgment under OCGA § 9-11-56, 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. Moreover, on appeal from the denial or grant of summary judgment, the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation and punctuation omitted.) Weller v. Blake, 315 Ga. App. 214, 215 (726 SE2d 698) (2012).

Viewed in the light most favorable to Johnson, the facts showed that Johnson was born in Memphis, Tennessee in August 1987 and lived at the same address from the time she was three years old until she graduated from high school. Johnson went to Tallahassee Community College in Florida for 2005 and 2006 and then to Coffeyville Community College in Kansas for one year. Next, Johnson returned to her parents’ house in Memphis and attended Southwest Community College for one semester. In August 2007, Johnson moved to Georgia to attend Kennesaw State University, where she received a basketball scholarship.

Johnson lived on campus for her first two years at Kennesaw State, and returned to Memphis for the summer of 2008. In the fall of 2009, Johnson moved to an off-campus apartment in Kennesaw, Georgia, where she lived alone. Her father bought her a car, which was registered in her name. She later obtained car insurance with GEICO in Georgia. Johnson obtained a Georgia driver’s license in July 2009, but her car remained registered in Tennessee because she was not able to register it in Georgia. She worked for Murphy Oil in Kennesaw during the summer of 2009 and did not return to Tennessee, except to visit. Johnson testified that the last time she lived in Tennessee was prior to April 2009, but submitted an affidavit in which she stated that she returned home regularly for weekends, school breaks, and holidays. After the accident, however, Johnson submitted an application to Kennesaw State in which she certified that she had continuously resided in Georgia from August 15, 2007 to March 17, 2011.

While she attended Kennesaw State, Johnson’s parents continued to pay some of her expenses that were not covered by the scholarship. Johnson filed tax returns in Georgia for 2009 and 2010. Her parents claimed her as a dependent on their tax returns up until 2010. She registered to vote in high school in Tennessee, but has never voted.

On January 30,2010, Johnson was a passenger in a car driven by a friend when they were hit by a car driven by Derrick Bartley. Johnson suffered injuries to her arm, leg, and eye, which required multiple surgeries, and incurred medical expenses in excess of $190,000. She sued Bartley to recover for her injuries. Bristol West was served with a copy of the complaint as an underinsured motorist carrier for Johnson under a policy issued to Johnson’s father in Tennessee. In October 2009, Johnson was removed from that policy at her father’s request.

Bristol West denied Johnson’s claim under the personal automobile policy issued to her father because she had been removed from the policy prior to the accident and she was not otherwise covered as a resident of her father’s household at the time of the accident. The parties filed cross-motions for summary judgment on the coverage issue. After conducting a hearing, the trial court granted Bristol West’s motion. Applying Tennessee law, the trial court concluded that Johnson was not covered under the Bristol West policy because she was not “actually living” in her father’s household and was therefore not an “insured person” as defined by the policy.

1. The parties correctly stipulate that Tennessee law governs the construction of the policy because the insurance contract was made and delivered to Johnson’s father in Tennessee. Geico Gen. Ins. Co. v. Wright, 299 Ga. App. 280, 281 (682 SE2d 369) (2009); O’Neal v. State Farm Mut. Automobile Ins. Co., 243 Ga. App. 756, 757 (1) (533 SE2d 781) (2000); Gen. Electric Credit Corp. v. Home Indem. Co., 168 Ga. App. 344, 350 (2) (b) (309 SE2d 152) (1983).

The policy provides uninsured motorist coverage as follows:

PART C — UNINSURED MOTORIST COVERAGE
INSURING AGREEMENT
Subject to the limits of liability, if “you” pay “us” the premium when due for Uninsured Motorist coverage: “We” will pay compensatory damages an “insured person” is legally obligated to recover from the owner or operator of an “uninsured motor vehicle” [] because of
A. “Bodily injury” sustained by an “insured person” and caused by an “accident” if the “Declarations” indicates that Uninsured Motorists “Bodily Injury” Coverage applies; and
B. “Property Damage” sustained by an “insured person” and caused by an “accident” if the “Declarations” indicates that Uninsured Motorists “Property Damage” Coverage applies.

Under Part C of the policy, an “insured person” includes “you” or any “family member.” Pursuant to the policy’s general definitions, “you” and “your” include the “named insured” and the spouse of the “named insured.” “Family member” means a person related to “you” by blood, marriage or adoption who is a “resident” of “your” household. “Resident” means domiciled and actually living in the household in which “you” reside.

2. Johnson contends that the trial court erred in concluding that the policy should not be construed in her favor because the relevant terms are undefined and ambiguous, specifically the terms “domiciled,” “actually living,” and “household.” Applying Tennessee law, we conclude that these terms are unambiguous.

The Tennessee Supreme Court has stated:

The analysis used in construing insurance policies is well settled. Insurance contracts like other contracts should be construed so as to give effect to the intention and express language of the parties. Words in an insurance policy are given their common and ordinary meaning. Where language in an insurance policy is susceptible of more than one reasonable interpretation, however, it is ambiguous. Where the ambiguous language limits the coverage of an insurance policy, that language must be construed against the insurance company and in favor of the insured.

(Citations and punctuation omitted.) Tata v. Nichols, 848 SW2d 649, 650 (Tenn. 1993).

Under Tennessee law, domicile is an established term, meaning the same thing as legal residence. Bearman v. Camatsos, 215 Tenn. 231, 236 (385 SW2d 91) (1964); see Parrott v. Abraham, 146 SW3d 623, 627 (Tenn.App. 2003) (“ ‘Domicile’is, of course, a concept widely used in both federal and state courts for jurisdiction and conñict-oflaws purposes, and its meaning is generally uncontroverted.”). Tennessee courts have also determined that no ambiguity exists in the phrase “lives with you.” Northland Ins. Co. v. State Farm Mut. Auto Ins. Co., 916 SW2d 924, 928 (Tenn.App. 1995).

“The phrase ‘resident of your household’ and similar phrases appear often in insurance contracts. They have been construed frequently and are not ambiguous.” (Citations omitted.) Nat. Ins. Assn. v. Simpson, 155 SW3d 134, 138-139 (II) (B) (Tenn.App. 2004); see Gredig v. Tennessee Farmers Mut. Ins. Co., 891 SW2d 909, 914 (III) (Tenn. App. 1994) (“The appellate courts of [Tennessee] have clearly held that language similar to the ‘residing in your household’ language of the instant policy is susceptible to definition. To the extent that it can be and has been defined by our appellate courts, the language is not ambiguous.”). “However, [Tennessee] courts have recognized that these phrases are necessarily elastic because of the numerous factual settings to which they apply.” (Citations omitted.) Simpson, supra, 155 SW3d at 139 (II) (B).

3. Johnson contends that the trial court erred in determining that she could not have two simultaneous residences — one at her parents’ Tennessee home and one at her college apartment in Georgia. She also challenges the trial court’s conclusion that she was not actually living with her parents at the time of the collision.

There are Tennessee cases stating that a person may have more than one residence, but only one domicile. Bearman, supra, 215 Tenn. at 236; McDonough v. State Farm Mut. Automobile Ins. Co., 755 SW2d 57, 67 (Tenn. App. 1988). The trial court did not conclude that it was impossible for a person to have two simultaneous principal residences, but noted that such circumstances are exceptional. Regardless, the relevant issue is whether Johnson was a resident of her father’s household as defined by the policy.

An “insured person” under the policy includes any “family member,” which is defined to include a person related to you by blood who is a resident of your household. The policy defines “resident” as domiciled and actually living in the household of the named insured. The trial court determined that Johnson’s domicile remained in Tennessee, but concluded that she was not “actually living” in her father’s household.

Because the term “actually living” is not defined in the policy, we must give the words their natural and ordinary meaning. Northland Ins. Co., supra, 916 SW2d at 928. In such circumstances, Tennessee courts have looked to the dictionary definition, finding that “live with” means to dwell with or be a lodger at the home of. Id. at 927-928. In Northland, a 23-year-old was determined to be “living with” his mother when he had been sleeping in a car prior to the accident, had first left his parents’ home at 19 and had bounced around ever since, kept some property at his mother’s house and received his mail there and at his brother’s house, had keys to his mother’s house and listed his mother’s address on his driver’s license. Id. at 926-927. The court held he was “not a visitor..., but a family member who had no where else to go under the circumstances that existed at the time of the accident, and as such was ‘living with’ his mother at the time of the accident.” Id. at 927.

In McDonough, supra, 755 SW2d at 58, 66, the court considered whether a 28-year-old son lived with his parents for purposes of determining uninsured motorist coverage. According to the parents, the son had lived with his parents off and on during and after college and although he had signed a lease on a house, he spent two or three nights at his parents’ house during the week and most weekends, ate meals at their house, kept clothing and other items at their house, had a key to their house and a bedroom where he slept, received mail there and at his rental house, received support from them, and intended to move back in with his parents and give up the rental house. Id. at 59-65. Although the parents argued that their son lived in their home and the rental home, the court disagreed based on its determination that the son had established a residence in the rental house, using it for his personal and business headquarters, that he spent most nights there, and that he used that address on his checks and his driver’s license. Id. at 67. The court noted that he retained a special relationship with his parents’ home, but held that the relationship was “that of a welcome, frequent, but irregular visitor. It could not be reasonably characterized as that of a resident who lived with’ his parents.” Id.

Based on the circumstances present here, we conclude that Johnson was not “actually living” with her parents. At the time of the accident, Johnson was a 22-year-old student at Kennesaw State and lived in an off-campus apartment. She had signed a one-year lease on her Georgia apartment where she lived full-time, except for some weekends and holidays, did not return to her parents’ house the summer before the accident, was employed in Georgia, had a Georgia driver’s license, maintained Georgia insurance on her car, and kept her car at her Georgia apartment. Although Johnson was a frequent and welcome visitor at her parents’ home, she was not “actually living” there in January 2010. See McDonough, supra, 755 SW2d at 67.

Johnson relies on State Farm Mut. Automobile Ins. Co. v. Thomas, 699 SW2d 156 (Tenn. App. 1983), to support her claim that she is a resident of her father’s household. Thomas, however, was decided under Virginia law and involved a 19-year-old who lived with his parents except during the summer season. Id. at 157. Johnson also points out that other jurisdictions have ruled that children attending college away from their parents’ homes are considered residents of their parents’ household for automobile insurance purposes. See 66 ALR5th § 269-5a and cases cited therein. Tennessee, however, is not one of the states that has weighed in on this issue. Nor is the policy at issue one that specifically includes “your unmarried and unemancipated child away at school” in the definition of family member or relative. See Northland, supra, 916 SW2dat 925. Further, Johnson’s father removed her from his policy despite a notification on the front page of the policy that “[u]nless drivers residing with the ‘named insured’ and other drivers who do not reside with the ‘named insured’ but frequently or regularly use a covered auto are named in the ‘Declarations’, coverage may not be afforded.”

Our decision that Johnson is not an insured person under the policy is based on the policy terms and Tennessee law interpreting those terms, considering the specific facts of this case. That decision is not inconsistent with Tennessee cases interpreting the phrase “resident of your household” where the term “resident” is not defined in the policy as it is here. In 1961, the Tennessee Supreme Court held that “household” means “those living together under one roof, under one head and under the common control of one person.” Boyd v. Peoples Protective Life Ins. Co., 208 Tenn. 280, 286 (345 SW3d 869) (1961). The trial court relied on this definition to conclude that Johnson was not actually living with her parents because she and her father were not living together under one roof and there was no evidence that she was under his control such that he could bring her home at any time. Later cases from the Tennessee Court of Appeals have stated that the prevailing understanding of household does not necessarily require the existence of a family head, but instead recognize a household as a group or set of persons who dwell together as a family under the same roof. VanBebber v. Roach, 252 SW3d 279, 286 (IV) (B) (Tenn. App. 2007); Simpson, supra, 155 SW3dat 139-140 (II) (B). Factors used to determine whether a person is a resident of a household

include, but are not limited to: (1) the person’s subjective or declared intent to remain in the household either permanently or for an indefinite or unlimited period of time, (2) the formality or informality of the relationship between the person and the other members of the household, (3) whether the place where the person lives is in the same house or on the same premises, (4) whether the person asserting residence in the household has another place of lodging, and (5) the age and self-sufficiency of the person alleging to be a resident of the household.

Simpson, supra, 155 SW3d at 139-140 (II) (B).

Although Johnson and her parents certainly were a family and submitted affidavits indicating that Johnson intended to remain in her parents’ household, she was not in fact dwelling under the same roof with them at the time but instead at her own apartment in a different state. Johnson was not a minor and had a job, but she was not completely self-sufficient. Considering the additional factors that Johnson had not lived with her parents the prior summer and her certification that she had continuously lived in Georgia from August 2007 to March 2011, our conclusion that Johnson was not “actually living” with her parents is consistent with a determination that she was not a resident in their household at the time of the accident.

Decided March 29, 2013.

Katz, Stepp, Wright & Fleming, Robert N. Katz, Briant G. Mildenhall, for appellant.

Cruser & Mitchell, Evan R. Mermelstein, Worsham, Corsi, Scott & Knighten, Timothy W. Andrews, for appellees.

We therefore affirm the trial court’s grant of Bristol West’s motion for summary judgment on the issue of coverage.

Judgment affirmed.

Ray and Branch, JJ., concur.

       Johnson does not dispute that she has recovered from Bartley’s liability insurance carrier, her uninsured carrier, and the uninsured carrier of the driver of the car in which she was riding.

       An “uninsured motor vehicle” is defined to include a motor vehicle to which a liability policy applies at the time of the accident, but the sum of the limits of liability available under all collectible policies is less than the coverage provided under the Bristol West policy.


author: McFADDEN, Judge.

text:
    A12A1902.
    PADGETT v. BAXLEY AND APPLING COUNTY HOSPITAL AUTHORITY.
    (741 SE2d 193)
   McFADDEN, Judge.

Nelda F. Padgett’s mother was an Alzheimer’s patient at a nursing home when she fell from her shower chair, suffered serious injuries, and died a week later. Padgett sued the nursing home on behalf of her mother’s estate for pain and suffering and as next of kin for wrongful death damages, alleging that her mother’s injuries and death were caused by professional negligence, ordinary negligence, and breach of contract, and also on the theory that her mother’s statutory rights as a nursing home patient under the “Bill of Rights for Residents of Long-term Care Facilities,” OCGA § 31-8-100 et seq., had been violated. The trial court granted the nursing home’s motion for summary judgment on all grounds, and Padgett appeals. As detailed below, we find no genuine issues of material fact as to the claims for professional negligence, breach of contract, or breach of a duty under OCGA § 31-8-100 et seq., and we affirm the grant of summary judgment on those claims. We find, however, that genuine issues of material fact exist as to the claim for ordinary negligence, and we reverse the grant of summary judgment as to that claim.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” (Citations and punctuation omitted.) Walker v. Gwinnett Hosp. System, 263 Ga. App. 554, 555 (588 SE2d 441) (2003). Atrial court’s grant of summary judgment is reviewed de novo on appeal, construing the evidence in the light most favorable to the nonmovant. Ethridge v. Davis, 243 Ga. App. 11, 12 (530 SE2d 477) (2000). Once the party moving for summary judgment has made a prima facie showing that it is entitled to judgment as a matter of law, the nonmovant must then come forward with rebuttal evidence sufficient to show the existence of a genuine issue of material fact. Weldon v. Del Taco Corp., 194 Ga. App. 174 (390 SE2d 87) (1990).

So viewed, the record establishes that Padgett’s mother, Juanita Walls, became a patient at the Appling Nursing and Rehabilitation Pavilion in March 2006. On November 22, 2008, a certified nursing assistant (“CNA”) and another employee at the facility placed Walls in a shower chair so the CNA could bathe her. The CNA removed Walls’ underwear, turned around and placed it in a plastic bag, and then she turned back around to see Walls on the shower floor. Walls suffered multiple injuries and underwent surgery the next day. She was transferred to hospice care the day after that, and died on November 29, 2008, a week after the fall.

Padgett filed the underlying action alleging that the nursing home was negligent in

failing to follow proper fall prevention protocol for [Walls] by leaving her unattended in the shower room; by failing to use proper restraints to insure that she did not fall out of the shower chair;... and for violating the standards and duties of providing that reasonable care and skill applicable to nurses, doctors and staff in a nursing home environment.

Padgett also asserted that the nursing home “failed to exercise that degree of skill and care required of medical professionals and nursing professionals generally and under similar conditions and like surrounding circumstances in a nursing home setting.” She attached two affidavits to her complaint, one from an internal medicine physician (“Dr. Jones”), and one from a registered nurse (“Nurse Smith”). Both health care professionals averred that they made their affidavits pursuant to OCGA § 9-11-9.1 in support of Padgett’s professional negligence claim. In essentially identical affidavits, the affiants averred that Walls was at high risk for falls and that the nursing home was “negligent by failing to properly follow fall protocol [,] by leaving the patient unattended, ... by failing to properly supervise staff; and by failing to provide an adequate shower chair with proper restraints.” Dr. Jones said the nursing home was also negligent for “failing to write correct orders to ensure [Walls’] safety,” and Nurse Smith said the nursing home was negligent for “failing to follow or request orders to ensure [Walls’] safety.”

The nursing home moved for summary judgment, asserting that Padgett had submitted no competent expert testimony to support her claims. It maintained that Padgett’s affidavits were insufficient to establish any genuine issues of material fact because the affiants’ opinions were not based on personal knowledge, and because certified copies of the medical records on which the opinions were based were not attached to the affidavits. Further, the nursing home argued that the affidavits did not contain the necessary information required by former OCGA § 24-9-67.1 to establish the affiants’ expert qualifications.

In response to the nursing home’s motion, Padgett argued that the nursing home had failed to submit an expert’s affidavit that pierced the allegations in her complaint. She further contended that the affidavits attached to her complaint constituted sufficient evidence to create a jury issue, and also submitted the affidavit of Ellen Lewis, a registered nurse. Lewis averred that the medical care and treatment the nursing home provided to Walls, “in particular by her attending nurses, certified nursing assistants (CNAs) and staff fell below that degree of care and skill ordinarily employed... in general and under like conditions and similar circumstances.” She specifically averred that the CNA

left Ms. Walls unattended, even if only briefly, failed to request a proper fall and risk assessment before attending to Ms. Walls, or to request correct orders to insure her safety; or to properly supervisor [sic] her while preparing to give her a shower. In addition, they were negligent by placing her in an ill-fitting shower chair without proper restraint or other precautions taken to prevent her from falling out of the chair, or prevent her from pushing herself out.

Finally, Padgett also argued that genuine issues existed regarding her ordinary negligence, breach of contract, and statutory claims.

The trial court granted the nursing home’s motion for summary judgment. The court found that the affidavits of Dr. Jones and Nurse Smith that were attached to Padgett’s complaint were insufficient to establish a genuine issue of material fact because they were based on the unsupported assumptions that Walls was alone on an ill-fitting shower chair when she fell, and “[did] not relate to the standard of care to be exercised by persons who are attending impaired residents while they shower, which is the determinative issue.”

The trial court found that “[t]he affidavit of Ellen Lewis, R.N. is therefore the sole expert evidence presented” to establish that an issue of material fact existed about whether the nursing home breached the professional standard of care, but held that Lewis’ affidavit was insufficient because Lewis relied on medical records that were not included with the affidavit.

The trial court further concluded that Padgett could not maintain a cause of action for damages based on the “Bill of Rights for Residents of Long-term Care Facilities,” OCGA § 31-8-100 et seq., because the alleged tort involved professional negligence, and that she could not prevail on her remaining claims based on the evidence of record.

1. Padgett first contends that the trial court erred in granting the nursing home’s motion for summary judgment, arguing that the record contains evidence establishing the existence of genuine issues of material fact in her professional negligence claim. She asserts that in each of her affidavits, the medical professional testified with specificity about each element required to demonstrate that the conduct of the nursing home staff fell below the applicable standard of care, and that the nursing home presented no evidence that its conduct met the standard of care. She also argues that the nursing home failed to pierce her pleadings by pointing to the absence of particular facts that would entitle it to summary judgment.

However, a defendant need not present expert testimony, or any testimony, to prevail on summary judgment. A defendant need only assert that the plaintiff has not presented evidence sufficient to establish genuine issue of facts on all the elements of the claim for the burden to shift to the plaintiff to establish the existence of jury issues.

If a defendant who moves for summary judgment can point out by reference to the affidavits, depositions, and other evidence of record that there is no evidence sufficient to create a jury issue with respect to at least one essential element of the plaintiff’s case, viewing all evidence and reasonable inferences therefrom in a light most favorable to the nonmoving party, without the necessity of weighing the evidence or determining the credibility of the witnesses, such defendant is entitled to summary judgment unless the plaintiff can come forward with specific evidence giving rise to a triable issue.

(Citation and punctuation omitted.) Meli v. Hicks, 300 Ga. App. 894, 896 (686 SE2d 489) (2009).

In this case, although Padgett presented the affidavits of three health care professionals, none of them included certified copies of the medical records on which the affiants relied.

To be sufficient to controvert the defendant’s expert opinion and [to] create an issue of fact, the plaintiff’s expert must base his opinion on medical records which are sworn or certified copies, or upon his own personal knowledge; and he must state the particulars in which the defendant’s treatment of the plaintiff was negligent.

(Punctuation omitted.) Hailey v. Blalock, 209 Ga. App. 345, 347 (2) (433 SE2d 337) (1993). We have reasoned that the certified records requirement “responds to the question of hearsay as the foundation for an opinion, and conforms to the rule that mere conclusions are not sufficient to create issues of fact.” Id.

The experts averred that they relied upon numerous documents including Walls’ medical records, a Department of Human Resources investigatory report, the other expert affidavits, a medical narrative, and the deposition of the CNA who was with Walls when she fell. However, the certified medical records on which the experts relied were not attached to their affidavits. Nor do the affidavits show that the averments were made upon personal knowledge because each expert clearly states that the opinions are based on “review” of the documentation listed in her affidavit. See Crawford v. Phillips, 173 Ga. App. 517, 518 (1) (326 SE2d 593) (1985).

It is well established that an affidavit purporting to rely on papers or other materials not attached to the affidavit is insufficient to create a genuine issue of fact on summary judgment. See Bregman-Rodoski v. Rozas, 273 Ga. App. 835, 836-837 (616 SE2d 171) (2005) (affirming grant of summary judgment to defendants when plaintiff failed to file copies of medical records on which her expert affidavit was based). Absent expert testimony that defendant deviated from the requisite standard of care, summary judgment is properly granted in favor of defendant. Id. Given the deficiencies in Padgett’s affidavits, the trial court did not err in granting summary judgment to the nursing home on the professional negligence claim.

2. Padgett also contends that the trial court erred in granting summary judgment on her ordinary negligence claim. The trial court held that “[djetermining what measures are appropriate to keep a particular nursing home resident reasonably safe calls for the exercise of professional judgment”; thus any negligence alleged “was professional negligence rather than ordinary negligence.”

“Not all injuries that occur in a hospital, nursing home or other health care facility are the result of professional negligence; they may be solely attributable to ordinary or simple negligence.” (Citation omitted.) Moore v. Louis Smith Mem. Hosp., 216 Ga. App. 299 (454 SE2d 190) (1995). Accord Lamb v. Candler Gen. Hosp., 262 Ga. 70, 71 (413 SE2d 720) (1992). In this case, a genuine issue of material fact exists as to whether the defendant is liable for the ordinary or simple negligence of the CNA who was attending Walls when she fell in the shower, precluding summary judgment on that claim.

When an action alleges negligence by a professional, “[wjhether [the] action alleges professional malpractice or simple negligence depends on whether the professional’s alleged negligence required the exercise of professional judgment and skill.” Mendoza v. Pennington, 239 Ga. App. 300 (1) (519 SE2d 715) (1999). Application of this rule presumes, however, that the allegedly negligent actor was a professional. See generally Upson County Hosp. v. Head, 246 Ga. App. 386, 390 (1) (540 SE2d 626) (2000) (discussing differences between acts by nonprofessionals, acts by professionals that do not involve professional judgment, and acts by professionals that do involve professional judgment). Here, the allegedly negligent actor was a CNA. A CNA is not one of the “professionals” for which OCGA § 9-11-9.1 requires an expert affidavit to avoid dismissal of a professional negligence action. See OCGA § 9-11-9.1 (g) (listing professions to which affidavit requirement applies); see also Sembler Atlanta Dev. I v. URS/Dames & Moore, 268 Ga. App. 7, 8-9 (601 SE2d 397) (2004) (affidavit requirement applies only to professionals listed in statute). Nor is a nursing assistant identified as a “professional” in other sections of the Georgia Code. See OCGA §§ 14-7-2, 14-10-2, 43-1-24.

Moreover, “where... the plaintiff can prove negligence or breach without proof of a customary procedure and violation of it, the case is not a professional malpractice case.” Razete v. Preferred Research, 197 Ga. App. 69, 70 (397 SE2d 489) (1990). The actions of the CNA that Padgett alleges were negligent — the CNA’s use of a shower chair that was too large for Walls and her act of leaving Walls “unattended[ ] in the shower room” — do not require proof of a customary procedure. They “do [ ] not turn on a medical question, and a jury would be capable of determining without the help of expert assistance whether [the CNA] exercised due care” when placing a frail and mentally-impaired elderly person in an ill-fitting shower chair and then turning away while assisting that person. (Citations and punctuation omitted.) Kerr v. OB/GYN Assoc. of Savannah, 314 Ga. App. 40, 41-42 (1) (723 SE2d 302) (2012). Likewise, a jury would be capable of determining whether a causal link existed between these actions and the fall (and resulting injuries) that Walls sustained immediately after these actions. See Cowart v. Widener, 287 Ga. 622, 628 (2) (b) (697 SE2d 779) (2010) (“[w]here the causal link between the defendant’s conduct and the decedent’s injury can be determined by a lay jury without expert guidance, no expert evidence need be produced to defeat a defense motion for summary judgment”).

Because a genuine issue of material fact exists as to Padgett’s claim for ordinary negligence, the trial court erred in granting summary judgment to the nursing home on that claim.

3. Padgett also contends that the trial court erred in granting the nursing home’s motion for summary judgment on her claims for breach of contract and breach of the statutory duty to her created by the “Bill of Rights for Residents of Long-term Care Facilities,” OCGA § 31-8-100 et seq. She asserts that genuine issues of material facts exist as to whether Walls received adequate and appropriate care, treatment and services in compliance with the statute.

Under her count claiming “professional and general negligence,” Padgett alleged that the nursing home “violated] the patient’s rights pursuant to OCGA § 31-8-108.” She also alleged that the nursing home was liable for punitive damages for violating Walls’ rights as a resident of a long-term care facility, citing OCGA § 31-8-136 (a). Finally, in her breach of contract claim, she alleged that Walls “entered into a contract with Defendant wherein for consideration paid, Defendant agreed to provide Juanita Walls with reasonable care and skill in long-term nursing and health care,” that the nursing home “failed to provide reasonable care or skill by virtue of the breach of standards stated herein,” and that it “breached the contract for long-term care by failing to provide reasonable care and skill for Juanita Walls, resulting in damages to her body, incurred medical and related expenses, and injury to her dignity and privacy.”

OCGA § 31-8-108 (a) (2) provides: “Each resident shall receive care, treatment, and services which are adequate and appropriate. Care, treatment, and services shall be provided . . . [i]n compliance with applicable laws and regulations.”

Decided March 29, 2013.

Buzzell, Graham & Welsh, Neal B. Graham, for appellant.

Huff, Powell & Bailey, Randolph P. Powell, Jr., Erica S. Jansen, for appellee.

In the context of a nursing home, over and above the contractual obligation the nursing home assumed to take care of its residents, the State has imposed a statutory obligation for it to exercise “reasonable care and skill.” OCGA § 31-8-108----The general standard of care required of a nursing home is that degree of care, skill, and diligence usually exhibited by such homes generally in the community.

Associated Health Systems v. Jones, 185 Ga. App. 798, 801 (366 SE2d 147) (1988).

To recover under the statute, Padgett had to show that the CNA “failed to do something which a reasonable person, guided by the above considerations which ordinarily regulated the conduct of affairs of a nursing home, would have done, or ought to have done, and failed to perform such responsibility.” Associated Health Systems, 185 Ga. App. at 801. The record contains no evidence in this regard. Nor did Padgett introduce evidence raising an issue of fact as to whether the CNA “failed to properly perform the nonprofessional, administrative aspects” of caring for Walls, or that such a failure “resulted in a regulatory violation leading to [Walls’] injuries. . . .” Williams v. Alvista Healthcare Center, 283 Ga. App. 613, 616 (1) (b) (642 SE2d 232) (2007). Accordingly, the trial court did not err in granting summary judgment as to this claim as well.

4. We have examined Padgett’s remaining enumerations of error, and have either addressed them or find them to be without merit.

Judgment affirmed in part and reversed in part.

Barnes, P. J., and McMillian, J., concur fully in Divisions 1, 3, and 4, and concur in judgment only as to Division 2.

       The defendant is Baxley and Appling County Hospital Authority d/b/a Appling Healthcare System d/b/a Appling Nursing and Rehabilitation Pavilion.

       While the trial court found that the nursing home was procedurally barred from asserting that Padgett’s expert affidavits did not comply with the requirements of OCGA § 9-11-9.1, the nursing home did not make that argument. Instead, it challenged the affidavits’ “substance rather than form.” Parlato v. MARTA, 165 Ga. App. 758, 759 (1) (302 SE2d 613) (1983).

       “Any resident or the representative or legal surrogate of the resident, if any, may bring an action in a court of competent jurisdiction to recover actual and punitive damages against a personal care home or its governing body, administrator, or employee for any violation of the rights of a resident granted under this article.” OCGA § 31-8-136 (a).