author: Miller, Judge.

text:
    A13A2221, A13A2222.
    CUMBERLAND CONTRACTORS, INC. et al. v. STATE BANK AND TRUST COMPANY, INC.; and vice versa.
    (755 SE2d 511)
   Miller, Judge.

State Bank and Trust Company, Inc. (“State Bank”), as successor to the original lender, sued Cumberland Contractors, Inc. and Michael and Lucy Thomas (collectively, the “Defendants”) to recover amounts owing on several promissory notes and guarantees. The Thomases filed counterclaims for invasion of privacy and intentional infliction of emotional distress. The trial court dismissed these counterclaims and also denied the Defendants’ motion to enforce a settlement agreement. At trial, the Defendants moved for a directed verdict, and the trial court denied their motions. The trial court entered a judgment in State Bank’s favor following the jury’s verdict. After the Defendants filed a notice of appeal, State Bank filed a motion for supersedeas bond, which the trial court denied.

In Case No. A13A2221, the Defendants contend that the trial court erred in: (1) granting State Bank’s motion in limine ruling that State Bank was the real party in interest to sue on the notes and guarantees; (2) dismissing the Thomases’ counterclaims; (3) denying their motion to enforce a settlement agreement; (4) denying their motion for a directed verdict on collection of the promissory notes; (5) denying their motion for a directed verdict as to State Bank’s claim for attorney fees; and (6) charging the jury on the doctrine of holder in due course. In Case No. A13A2222, State Bank contends that the trial court erred in denying its motion for supersedeas bond.

Since the evidence shows that the parties entered into a binding settlement agreement prior to trial, we reverse the trial court’s judgment in Case No. A13A2221. We affirm the trial court’s denial of State Bank’s motion for supersedeas bond in Case No. A13A2222.

[0]n appeal from the denial of a motion for a directed verdict ... , we construe the evidence in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury’s verdict. However, we review questions of law de novo[.]

(Punctuation and footnotes omitted.) Southland Propane, Inc. v. McWhorter, 312 Ga. App. 812, 813 (720 SE2d 270) (2011).

So viewed, the evidence shows that Michael and Lucy Thomas owned and were officers of Cumberland Contractors. Michael served as the Chief Executive Officer and Chief Financial Officer, and Lucy served as the company’s secretary. From the time of the formation of Cumberland Contractors, Michael borrowed money from several banks. Beginning in 2005, Michael borrowed money from Security Bank of Bibb County (“Security Bank”) to purchase lots in the Youngwood subdivision. By June 2009, the Thomases had not repaid all of the money they borrowed from Security Bank.

On June 26, 2009, the Defendants entered into four different loan agreements with Security Bank. Michael and Lucy executed a renewed promissory note (“Note 1”) in the principal amount of $650,000 plus interest. Cumberland Contractors renewed a promissory note (“Note 2”) with Security Bank for the principal amount of $1,075,000 plus interest. Michael and Lucy signed Note 2 on behalf of Cumberland Contractors, and they also executed personal guarantees on that note. The Defendants also entered into an additional loan agreement and executed a promissory note in the principal amount of $100,000 plus interest (“Note 3”), while Michael and Lucy executed a fourth promissory note in the amount of $200,000 plus interest (“Note 4”). All four notes had a maturity date of July 26, 2010.

In July 2009, Security Bank closed, and the Federal Deposit Insurance Corporation (“FDIC”) was appointed as receiver for Security Bank. Through a purchase agreement, FDIC assigned its interests in the subject notes, the related guarantees, and other related loan agreements to State Bank. State Bank also acquired Security Bank’s loan accounting system, which provided loan histories on the subject notes. After the Defendants defaulted on the four promissory notes, State Bank accelerated the amounts due, sent notices of default, and then filed the instant lawsuit seeking to enforce the promissory notes and related guarantees. At trial, State Bank presented the testimony of one of its portfolio managers, who testified as custodian of the business records relating to the four notes and to the amounts owing on the same. The jury returned a verdict in favor of State Bank. These appeals followed.

Case No. A13A2221

1. The Defendants contend that the trial court erred in granting State Bank’s motion in limine on the issue of whether State Bank was entitled to enforce and collect on the notes. Specifically, the Defendants argue that State Bank did not introduce evidence showing that there was a valid assignment of the loans to State Bank. We disagree.

We review a trial court’s ruling on a motion in limine for abuse of discretion. See Forsyth County v. Martin, 279 Ga. 215, 221 (3) (610 SE2d 512) (2005).

The doctrine of privity of contract requires that only parties to a contract may bring suit to enforce it. An exception to this requirement of contractual privity occurs when a party assigns another the contractual right to collect payment, including the right to sue to enforce the right. However, to be enforceable by the assignee, such an assignment must be in writing.

(Punctuation and footnotes omitted.) Level One Contact, Inc. v. BJL Enterprises, LLC, 305 Ga. App. 78, 80 (1) (a) (699 SE2d 89) (2010). Furthermore, promissory notes are negotiable instruments as defined in OCGA § 11-3-104 (a), which can be transferred “when... delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.” OCGA § 11-3-203 (a). Such a transfer, “whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course[.]” OCGA § 11-3-203 (b); see also Titshaw v. Northeast Ga. Bank, 304 Ga. App. 712, 715 (1), n. 10 (697 SE2d 837) (2010) (“Assignment of a note means transfer of the title to the instrument so that the recipient may bring an action thereon.”) (citation and punctuation omitted).

Here, at the hearing on the motion in limine, State Bank presented a January 27, 2010 notice from the Federal Register showing that the Security Bank failed and FDIC was appointed as the receiver for Security Bank. The trial court took judicial notice of the Federal Register notice, which it was required to do. Sims v. Southern Bell Telephone & Telegraph Co., Inc., 111 Ga. App. 363, 364 (141 SE2d 788) (1965); see also 44 USC § 1507.

The evidence further shows that the FDIC was acting as receiver for Security Bank when it assigned the loan documents to State Bank. This evidence includes an affidavit from State Bank’s portfolio manager, who testified that she was the records custodian for the bank, the subject notes and guarantees were kept by the bank in its regular course of business, and it was the regular practice of the bank to make records at or near the time of an event or reasonably soon thereafter. The portfolio manager also testified that State Bank had the notes and guarantees in its possession, and that it received these instruments when the FDIC assigned and transferred them pursuant to a Purchase and Assumption Agreement. Moreover, contrary to the Defendants’ claims, the written assignment was produced and identified. A copy of that agreement was attached to the portfolio manager’s affidavit, and the agreement identifies the FDIC as receiver of Security Bank. Liberally interpreting and applying the provisions of former OCGA § 24-3-14 (b), we hold that State Bank established that the affidavit and attached exhibits were admissible as business records. See Melman v. FIA Card Svcs., N.A., 312 Ga. App. 270, 271-272 (1) (a) (718 SE2d 107) (2011) (business documents attached to affidavit, which stated that the affiant was familiar with the company’s business records and that the company’s regular course of business was to make records at or near the time of event, were admissible). As a result, the trial court did not err in finding that State Bank is the real party in interest, because there was a valid assignment of the loans to State Bank. See Kensington Partners, LLC v. Beal Bank Nevada, 311 Ga. App. 196, 197 (1) (715 SE2d 491) (2011) (valid assignment of loan from FDIC to bank where evidence showed that FDIC acted as receiver when it assigned loan documents to bank). Accordingly, the trial court did not abuse its discretion in granting State Bank’s motion in limine on this issue.

2. The Defendants also contend that the trial court erred in dismissing the Thomases’ counterclaims for invasion of privacy and intentional infliction of emotional distress based upon the publication of their social security numbers in an exhibit attached to the complaint.* * We disagree.

Amotion to dismiss pursuant to OCGA § 9-11-12 (b) (6) will not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. The main consideration of such a motion to dismiss is whether, under the assumed set of facts, a right to some form of legal relief would exist. If material allegations are missing from a pleading, then the pleading fails.

(Citations and punctuation omitted.) Northway v. Allen, 291 Ga. 227, 229 (728 SE2d 624) (2012). Our review of a trial court’s ruling on a motion to dismiss is de novo. Id. With these principles in mind, we turn to review the Thomases’ counterclaims.

(a) Invasion of Privacy

[Tjhere are four disparate torts under the common name of invasion of privacy. These four torts maybe described briefly as: (1) intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and (4) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

(Citation and punctuation omitted.) Bullard v. MRA Holding, LLC, 292 Ga. 748, 751-752 (2) (740 SE2d 622) (2013).

In this case, the Thomases claimed that the publication of their social security numbers could result in identify theft, credit card fraud, and other offenses that might damage them personally and financially. These allegations do not fall within the causes of action for invasion of privacy because there is no allegation that State Bank (1) intruded into the Thomases’ seclusion, (2) disclosed embarrassing private facts, (3) depicted the Thomases in a false light, or (4) appropriated the Thomases’ name or likeness for State Bank’s own advantage. As a result, the Thomases’ counterclaim for invasion of privacy failed to state a claim for relief, and such claim was properly dismissed.

(b) Intentional Infliction of Emotional Distress

Georgia has long recognized a cause of action for intentional infliction of emotional distress. However, the burden which the plaintiff must meet in order to prevail in this cause of action is a stringent one. To prevail, a plaintiff must demonstrate that: (1) the conduct giving rise to the claim was intentional or reckless; (2) the conduct was extreme and outrageous; (3) the conduct caused emotional distress; and (4) the emotional distress was severe. The defendant’s conduct must be 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. 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.

(Citations and punctuation omitted.) Racette v. Bank of America, N.A., 318 Ga. App. 171, 179 (3) (733 SE2d 457) (2012).

Even assuming that State Bank intentionally or recklessly disclosed the Thomases’ social security numbers, thereby causing the Thomases severe emotional distress, it cannot be said that such action was “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.” Racette, supra, 318 Ga. App. at 179 (3). Consequently, the counterclaim for intentional infliction of emotional distress was properly dismissed.

3. The Defendants next contend that the trial court erred in denying their motion to enforce a purported settlement agreement. We agree.

We apply a de novo standard of review to a trial court’s order on a motion to enforce a settlement agreement, and view the evidence in a light most favorable to the nonmoving party. DeRossett Enterprises v. Gen. Elec. Capital Corp., 275 Ga. App. 728 (621 SE2d 755) (2005). “[T]he law favors compromise, and when parties have entered into a definite, certain, and unambiguous agreement to settle, it should be enforced.” (Punctuation and footnote omitted.) Id. at 729 (1).

In considering the enforceability of an alleged settlement agreement, however, a trial court is obviously limited to those terms upon which the parties themselves have mutually agreed. Absent such mutual agreement, there is no enforceable contract as between the parties. It is the duty of courts to construe and enforce contracts as made, and not to make them for the parties. The settlement agreement alleged to have been created in this case would have been the product of the attorneys for the parties. As the existence of a binding agreement is disputed, the proponent of the settlement must establish its existence in writing. The writing which will satisfy this requirement ideally consists of a formal written agreement signed by the parties.

(Citation and punctuation omitted.) Pourreza v. Teel Appraisals & Advisory, Inc., 273 Ga. App. 880, 882-883 (616 SE2d 108) (2005).

In this case, there is no dispute that the parties entered into settlement negotiations regarding State Bank’s claims against the Defendants, or that such negotiations led to the preparation of an e-mail from State Bank’s portfolio manager assigned to handle the Defendants’ loans. That e-mail, dated February 8, 2012, states that the “[s]ettlement has been approved by Committee under the following terms,” which were outlined in the e-mail. The e-mail further provided that State Bank’s “attorneys are currently drafting the settlement documents.” State Bank subsequently sent the settlement documents to the Thomases, but they declined to sign the documents because they believed the terms in the documents were inconsistent with the terms previously agreed upon.

There is no dispute that the February 8, 2012 e-mail memorialized the terms of the agreement that the Defendants seek to enforce. State Bank did not dispute the authenticity of the e-mail or the primary terms of the agreement, only that it was an agreement to agree, citing the language that the settlement documents still needed to be drafted. Notably, however, State Bank concedes that the “parties . . . reached a tentative agreement pending approval of the settlement documents.” The February 8, 2012 e-mail does not indicate that the settlement was conditioned upon the parties’ approval of settlement documents, and “the drafting of documents necessary to effectuate the settlement may have been a condition of the performance but it was not an act necessary to acceptance of the offer to settle.” Pourreza, supra, 273 Ga. App. at 883; see also Mealer v. Kennedy, 290 Ga. App. 432, 437 (659 SE2d 809) (2008) (the refusal to execute a release acceptable to a party did not obviate the prior agreement to settle). Moreover, the parties’ failure to follow through with the agreement did not negate the existence of the agreement or render it unenforceable. See Commercial Union Ins. Co. v. Marco Transp. Co., 211 Ga. App. 844, 845 (1) (440 SE2d 730) (1994). In light of the agreement to settle, the trial court erred in denying the Defendants’ motion to enforce the settlement agreement. Mealer, supra, 290 Ga. App. at 437. Therefore, we must reverse.

4. In light of our disposition in Division 3, we need not address the Defendants’ remaining enumerations of error.

Decided March 18, 2014

Reconsideration denied April ll, 2014

W. Douglas Adams, David G. Carter, for appellants.

Busch, Slipakoff & Schuh, Bryan E. Busch, Christopher M. Porterfield, Tawana B. Johnson, Shane P. Stogner, Jamie L. Cohen, Laura H. Mirmelli, for appellee.

Case No. A13A2222

5. State Bank contends that the trial court erred when it denied its motion for supersedeas bond. We disagree.

Having received a judgment for the recovery of money, State Bank exercised its statutory right to move the trial court for a supersedeas bond. See Barngrover v. Hins, 289 Ga. App. 410, 414 (3) (657 SE2d 14) (2008). The trial court “was obligated to require [the Defendants] to post a supersedeas bond in the full amount of the judgment, including costs, interest, and damages, unless, after notice and hearing, it found good cause for fixing a lesser amount.” (Citation omitted.) Id.; see OCGA § 5-6-46 (a) (upon motion made in the trial court before or after an appeal is docketed in the appellate court, the trial court shall require a supersedeas bond). However, a pauper’s affidavit will relieve the appellant from this necessity, unless the affidavit is traversed and proved untrue. See Hubbard v. Farmers Bank, 153 Ga. App. 497, 498 (265 SE2d 845) (1980).

In this case, while State Bank filed a motion for supersedeas bond, the Thomases filed affidavits stating that they and Cumberland Contractors did not have the ability to post such a bond. At the hearing on State Bank’s motion, State Bank did not traverse the affidavits or otherwise prove the Thomases’ statements to be untrue. Since the trial court’s ruling on the ability of the Defendants to post a bond is not subject to review, see Barham v. Levy, 228 Ga. App. 594, 596 (4) (492 SE2d 325) (1997), State Bank presents no basis to reverse the trial court’s denial of its motion for supersedeas bond.

Judgment affirmed in Case No. Al 3A2222. Judgment reversed in Case No. A13A2221.

Phipps, C. J., Andrews, P. J., Barnes, P. J., Ellington, P. J., Doyle, P. J., McFadden, Boggs, Ray, Branch and McMillian, JJ., concur. Dillard, J., disqualified.

       “The role of judicial notice is to eliminate formal proof as to: (1) matters of which the general public has common knowledge; (2) facts which are readily ascertainable by reference to some reliable source, and are beyond dispute; and (3) matters which are within the special province of the judge.” (Citations and punctuation omitted.) Nationsbank, N.A. (South) v. Tucker, 231 Ga. App. 622, 623 (1) (a) (500 SE2d 378) (1998).

       Former OCGA § 24-3-14 (b) provided:
      Any writing or record . . . made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event, if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.
      The provisions of former OCGA § 24-3-14 (b) are to be liberally interpreted and applied. See
        Angel Business Catalysts, LLC v. Bank of the Ozarks, 316 Ga. App. 253, 256 (1), n. 3 (728 SE2d 854) (2012).

       The Thomases also filed a counterclaim for a violation of the Fair Business Practices Act, but they do not challenge the trial court’s dismissal of this counterclaim on appeal.

       State Bank argued before the trial court, and on appeal, that the exhibit attached to its complaint was protected by absolute privilege afforded pleadings under OCGA § 51-5-8. In support of its argument, State Bank relies upon Finnerty v. State Bank and Trust Co., 301 Ga. App. 569, 569-570 (1) (687 SE2d 842) (2009), which held that the inclusion of the defendant’s social security number on a promissory note did not give rise to a counterclaim for invasion of privacy because the exhibit was protected under OCGA § 51-5-8. While Finnerty reasonably concluded that the promissory note was “pertinent and material to the relief sought” in the complaint, within the meaning of OCGA § 51-5-8, we disapprove Finnerty to the extent it held that the absolute privilege under OCGA § 51-5-8 barred an invasion of privacy claim. See Morrison v. Morrison, 284 Ga. 112, 113 (2) (663 SE2d 714) (2008) (OCGA § 51-5-8 explicitly applies only to libel claims); Renton v. Watson, 319 Ga. App. 896, 903 (4), n. 4 (739 SE2d 19) (2013). The Finnerty Court went on to conclude that the defendant’s counterclaim failed as a matter of law for other reasons. See Finnerty, supra, 301 Ga. App. at 570-572 (2), (3).
      In this case, the trial court’s order does not reveal that it relied upon Finnerty in dismissing the Thomases’ counterclaims, but to the extent it did so, it erred. Nevertheless, State Bank also argued in the trial court that the counterclaims should be dismissed on the alternative ground that the Thomases failed to state a cause of action. Consequently, we may affirm the trial court’s ruling under the right for any reason rule. See Bailey v. Hall, 267 Ga. App. 222, 223, n. 1 (599 SE2d 226) (2004) (judgment may be affirmed as right for any reason when the judgment may be sustained upon legal basis apparent from the record that was fairly presented in court below).

       Although we affirm the dismissal of the Thomases’ counterclaims, we note that the better practice when suing upon a promissory note is to redact the debtor’s social security number from the note in order to avoid the possibility that the debtor is subjected to identity fraud.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A13A2270.
    REED et al. v. CAROLINA CASUALTY INSURANCE COMPANY et al.
    (755 SE2d 356)
   Branch, Judge.

Georgia law provides that a tort plaintiff “shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed.” OCGA § 51-12-33 (g). In this wrongful death action, the trial court granted summary judgment in favor of the defendants on the ground that the undisputed facts show the plaintiffs’ decedent was at least 50 percent responsible for his own death. The plaintiffs contend the trial court erred by not allowing the jury to consider this issue. We agree and therefore reverse.

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. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003). And “questions of negligence, diligence, contributory negligence and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and undisputable cases.” (Citation omitted.) Bussey v. Dawson, 224 Ga. 191, 193-194 (160 SE2d 834) (1968). See also Sutton v. Justiss, 290 Ga. App. 565, 566 (659 SE2d 903) (2008) (“If reasonable minds can differ on the cause of the injury, the case is not plain, palpable, and indisputable and it should go to the jury”) (citation omitted).

The parties rely in large part on the same documents that were produced by officials involved in the response to and investigation of the accident. Construed in favor of the plaintiffs, these records show that at approximately 2:00 a.m. on August 26, 2008, Rimantas Labeika parked a tractor-trailer alongside a metal guardrail in the right side emergency lane on Interstate 285 westbound just past the entrance ramp to that highway from Interstate 75 South. Labeika parked because he was tired and because he had driven the maximum number of hours allowed by applicable regulations. He proceeded to go to sleep in the sleeper berth of his tractor. About one hour later, Thomas M. Reed II, accompanied by his friend Charles Shelton, was driving a Ford Explorer southbound on Interstate 75 approaching the intersection with Interstate 285 in wet and rainy conditions. Sometime earlier, Reed had been drinking alcohol, and he had a blood alcohol content of 0.095 as determined by a postmortem examination.

Reed entered the right-hand curve to transition onto Interstate 285 westbound at a rate of speed too fast for the curve and rainy conditions. Reed lost control of the vehicle and turned his wheel to the right, and the vehicle rotated in a clockwise direction and traveled onto the northern shoulder of the interstate, striking the “guardrail that borders the northern edge of the shoulder.” The vehicle “continued in a westerly direction and disengaged from the guardrail driver side down. The [vehicle] collided undercarriage first with the rear of [Labeika’s parked tractor-trailer].” “The impact... caused a rupture of the gas tank and a fire ensued.” The fire “consumed the Explorer”; Reed and Shelter were pronounced dead at the scene. A postmortem examination concluded that the cause of death for Reed was “Sequelae of Blunt Force Trauma and Thermal Injuries.” Labeika was cited for improper parking in a prohibited area. In connection with the citation, Labeika later forfeited his bond.

Thomas M. Reed, Sr., as a surviving parent and as the administrator of his son’s estate, and Aundrea C. Reed, as a surviving parent, filed this wrongful death action to recover damages from the defendants, asserting that there would have been no fire and their son would not have died but for the presence of the illegally parked tractor-trailer. In response to the defendants’ joint motion for summary judgment and following a hearing, the trial court granted summary judgment in favor of the defendants. The trial court concluded from the facts that it was plain and palpable that Reed’s own negligence was equal to or greater than that of the defendant, thereby barring recovery for his injuries and death, and that “reasonable minds could not differ as to this conclusion.”

1. The appellants first contend that the trial court did not have the authority to grant summary judgment because OCGA § 51-12-33 provides that, under the present circumstances, damages shall be apportioned by the “trier of fact.” That Code section provides:

Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.

OCGA § 51-12-33 (a). But we find nothing in the statute that abrogates a trial court’s authority under OCGA § 9-11-56 to grant summary judgment in an appropriate case, i.e., in a plain and indisputable case. See generally Garrett v. NationsBank, N.A. (South), 228 Ga. App. 114, 119 (491 SE2d 158) (1997) (summary judgment granted on the ground that the clear and palpable evidence showed that the sole proximate cause of plaintiff’s injury was her own contributory negligence; decided prior to 2005 amendments to OCGA § 51-12-33). See also Couch v. Red Roof Inns, 291 Ga. 359, 365 (1) (729 SE2d 378) (2012) (in 2005, the legislature wrote the common-law rule regarding a plaintiff’s contributory negligence into OCGA § 51-12-33 (g)).

2. The appellants also contend that the trial court erred by concluding as a matter of law or undisputed fact that Reed was 50 percent or more responsible for his own death.

As to the truck driver Labeika, the generally applicable law requires that “[t]o recover damages in a tort action, a plaintiff must prove that the defendant’s negligence was both the ‘cause in fact’ and the ‘proximate cause’ of the injury.” Atlanta Obstetrics and Gynecology Group v. Coleman, 260 Ga. 569 (398 SE2d 16) (1990). “With respect to factual causation . . . , we have held that the defendant’s conduct is not a cause of the event, if the event would have occurred without it.” (Citations and punctuation omitted.) Ogletree v. Navistar Intl. Transp. Corp., 245 Ga. App. 1, 3 (1) (535 SE2d 545) (2000). And proximate cause is

that which, in the natural and continuous sequence, unbroken by other causes, produces an event, and without which the event would not have occurred. What amounts to 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.

(Citation and punctuation omitted.) Zwiren v. Thompson, 276 Ga. 498, 500 (578 SE2d 862) (2003). “The requirement of proximate cause constitutes a limit on legal liability; it is a policy decision that, for a variety of reasons, e.g., intervening act, the defendant’s conduct and the plaintiff’s injury are too remote for the law to countenance recovery.” (Citation and punctuation omitted). Delta Airlines v. Townsend, 279 Ga. 511, 515 (1) (614 SE2d 745) (2005). With regard to the intervening act of the plaintiff’s own negligence, “[the] causal connection between an original act of negligence and injury to another is not broken by the ‘intervening’ act of a third person, if the nature of such intervening act was such that it could reasonably have been anticipated or foreseen by the original wrongdoer.” (Citation and punctuation omitted; emphasis supplied.) Wade v. Polytech Indus., 202 Ga. App. 18, 22 (3) (413 SE2d 468) (1991), quoting Williams v. Grier, 196 Ga. 327, 328 (2) (a) (26 SE2d 698) (1943). “And the risk created by the defendant may include the intervention of the foreseeable negligence of others.” (Citation omitted.) Wade, 202 Ga. App. at 23 (3) (trial court erred in directing judgment to defendant even though plaintiff’s own negligence may have intervened to cause plane crash where “genuine issues of material fact exist [ed] from which a jury could find that [plaintiff’s] failure reasonably could have been anticipated and foreseen”) (citations omitted.).

In the present case, there is an issue of fact as to whether Labeika’s act of parking in the emergency lane was a cause in fact of Reed’s death. Construed in favor of the appellants, the record shows that the fire was caused when the undercarriage of Reed’s vehicle struck the trailer and that Reed died from some combination of blunt force trauma and the fire. What the record does not show is whether Reed would have died if Labeika’s tractor-trailer had not been parked in the emergency lane that night. Thus, there is an issue of fact as to whether Reed would have died but for the presence of Labeika’s tractor-trailer illegally parked in the emergency lane.

With regard to proximate cause, the record shows that both Reed and Labeika violated traffic laws. Reed was driving with a blood-alcohol level above the legal limit, OCGA § 40-6-391 (a) (5); was driving too fast for the conditions, OCGA § 40-6-180; and failed to maintain his lane of travel, OCGA § 40-6-48. Meanwhile, Labeika had parked in violation of OCGA § 40-6-203, which provides that, with certain exceptions not applicable here, “no person shall... [s]top, stand, or park a vehicle . . . [o]n any controlled-access highwayf.]” OCGA § 40-6-203 (a) (1) (I). See also OCGA § 40-6-50 (b) (“no vehicle shall be driven in an emergency lane except in the event of an actual emergency” except for transit buses under specified circumstances). There remain, therefore, at a minimum, questions of material fact as to each party’s negligence in connection with the collision and the degree to which each party was at fault for the decedent’s injuries and death. The remaining issue, therefore, is whether it is plain and indisputable that Reed was 50 percent or more responsible for his own death. See OCGA § 51-12-33 (g); Bussey, 224 Ga. at 193-194.

Prior to the addition of OCGA § 51-12-33 (g), this Court addressed a case with similar facts. In Storer Communications v. Burns, 195 Ga. App. 230 (393 SE2d 92) (1990) (whole court), the plaintiff’s wife died “after she lost control of her vehicle and then struck another vehicle that was parked in the emergency lane of an interstate highway.” The evidence showed that a reporter had been sent to report on a four-car collision on an interstate highway and that he “parked in the emergency lane, turned on his emergency blinkers, and exited his vehicle.” Id. The plaintiff’s wife, who was approaching the scene, moved her car from the center to the left lane but lost control and veered into the left-hand guardrail, bounced back across the interstate, struck the reporter’s truck, and went off into a ravine. Id. The defendants argued that their motion for summary judgment should have been granted “because any negligence in parking the vehicle in the emergency lane ha[d] been eliminated as a proximate cause of the collision and also because [the plaintiff’s] recovery [was] barred by the contributory negligence of his deceased.” Id.

This Court explained that with regard to the foreseeability of injury resulting from illegally parking in the emergency lane,

it is not necessary that [the defendant] should have been able to anticipate the particular consequences which ensued. It is sufficient, if in ordinary prudence he might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might result.

(Citation and punctuation omitted.) Storer at 231-232. Cf. Smith v. Commercial Transp., 220 Ga. App. 866, 867 (1) (470 SE2d 446) (1996) (“[A]s a general matter, it would be difficult to state that the possibility of subsequent collisions following an initial accident blocking the road is absolutely not foreseeable.”) (footnote omitted). The Court held that the question whether the plaintiff’s recovery should be barred by his wife’s own contributory negligence, including a complete bar if her own negligence constituted 50 percent or more of the total negligence, was an issue of fact. Storer, 195 Ga. App. at 232. The Court concluded that “these questions do not have ‘plain and indisputable’ answers under the evidence of record and must be resolved by a jury.” Id. Compare Reid v. Midwest Transp., 270 Ga. App. 557, 561 (2) (607 SE2d 170) (2004) (under law providing relief from civil liability for those who render emergency assistance at the scene of an accident, defendant truck driver who parked in emergency lane to assist accident victims was not liable to passengers in vehicle that collided with his truck).

Although the facts of the present case show more fault on Reed’s part than the decedent in Storer, we conclude that there are issues of fact relative to the degree to which Reed’s and Labeika’s negligence caused Reed’s death, including whether Reed was 50 percent or more at fault. It is reasonably foreseeable that another motorist might negligently lose control of his vehicle at night in wet conditions and strike a tractor-trailer parked in the emergency lane on an interstate highway and that striking a tractor-trailer possibly might cause a fire thereby exacerbating the injuries resulting from such an event. As explained in Storer, it is not necessary that Labeika should have anticipated the particular manner in which Reed lost control of his vehicle, collided with the guardrail, and struck the tractor-trailer with the undercarriage of the Ford Explorer causing a fire and, possibly, Reed’s death. And as in Storer, “these questions do not have ‘plain and indisputable’ answers under the evidence of record and must be resolved by a jury.” Id. See generally Dickerson v. Guest Svcs. Co. of Virginia, 282 Ga. 771-772 (653 SE2d 699) (2007) (“the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety[,] are generally not susceptible of summary adjudication”) (citation omitted).

Judgment reversed.

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

On Motion for Reconsideration.

The appellees contend we failed to analyze two issues. First, the appellees contend that we failed to properly analyze the issue of “comparative negligence,” i.e., whether it was plain and palpable that Reed was at least 50% or more responsible for his own injuries thereby barring his recovery under OCGA § 51-12-33. Given that the original opinion has specific holdings addressing this issue, this argument is without merit.

Second, the appellees contend that we failed to analyze whether Reed failed to exercise ordinary care for his own safety and failed to avoid Labeika’s negligence by exercising ordinary care. The appellees argue that Reed failed to do so as a matter of law and that we should therefore affirm the trial court under the “right for any reason” rule. See Georgia-Pacific, LLC v. Fields, 293 Ga. 499, 504 (2) (748 SE2d 407) (2013) (“[a] grant of summary judgment must be affirmed if it is right for any reason, whether stated or unstated in the trial court’s order, so long as the movant raised the issue in the trial court and the nonmovant had a fair opportunity to respond”) (citation and punctuation omitted; emphasis in original).

Under the doctrine of avoidable consequences, “[i]f the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, [the plaintiff] is not entitled to recover. . . .” OCGA § 51-11-7. The defendant has the burden of proving that the plaintiff by ordinary care could have avoided the consequences caused by the defendant’s negligence. Garrett v. Nations-Bank, N.A. (South), 228 Ga. App. 114, 116 (491 SE2d 158) (1997). The appellees argue that the doctrine of avoidable consequences entitles them to summary judgment because Reed could have avoided the illegally parked tractor-trailer. There is no evidence, however that Reed was or should have been aware of the fact that a tractor-trailer was illegally parked in the emergency lane of an interstate entrance ramp such that he could have avoided the consequences of the truck driver’s decision to camp overnight in that spot. Accordingly, this argument does not provide grounds for summary judgment. See McCray v. FedEx Ground Package System, 291 Ga. App. 317, 322 (1) (661 SE2d 691) (2008) (except in “palpable and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached,” the question of whether the doctrine of avoidable consequences should bar the plaintiff’s recovery is for the jury); Lowery’s Tavern v. Dudukovich, 234 Ga. App. 687, 690 (3) (507 SE2d 851) (1998) (the question of whether the plaintiff exercised due care for his own safety “is ordinarily reserved for the jury,” and “it may be summarily adjudicated [only] where [the plaintiff’s] knowledge of the risk is clear and palpable”).

Decided March 25, 2014

Reconsideration denied April ll, 2014.

Thomas F. Cuffie, Harold W. Spence, Henrietta G. Brown, for appellants.

Carlock, Copeland & Stair, D. Gary Lovell, Jr., Erica L. Holzman, for appellees.

With regard to the argument that the appellants cannot recover because Reed failed to exercise due care for his own safety by drinking and driving too fast for conditions, which caused him to lose control of his vehicle, Georgia law holds that “[e]ven if a defendant is negligent, a determination that a plaintiff assumed the risk or failed to exercise ordinary care for her own safety bars recovery for the resulting injury suffered by the plaintiff, unless the injury was wilfully and wantonly inflicted.” (Citations omitted.) City of Winder v. Girone, 265 Ga. 723, 724 (2) (462 SE2d 704) (1995). Here, however, there is no evidence that Reed was aware of the parked tractor-trailer and therefore could not have assumed the risk. And although he may have failed to exercise ordinary care in a manner that led to his losing control of his vehicle, whether that failure, without more, would have caused his death is still a question of fact. As shown in the original opinion, Reed’s death was caused by a combination of blunt force trauma and thermal injuries, meaning that there is some possibility that Reed would not have died but for the presence of the illegally parked tractor-trailer. Accordingly, this argument is without merit.

Motion for reconsideration denied.

       DSG Business Corporation owns the tractor; LMV Trucking, Inc., owns the trailer; and Carolina Casualty Insurance Company insures LMV.

       “Sequelae” has been defined as a “condition following as a consequence of a disease,” Stedman’s Medical Dictionary, 27th ed., p. 1622 (2000), or as “an aftereffect of disease, condition, or injur/’ or "a secondary result.” Merriam-Webster.com.

       The appellees complain that the appellants failed to present expert testimony to show that Reed did not die as a result of his collision with the guardrail. But the plaintiff introduced a report from the Cobb County Police Department to show that the fire was caused when the underside of Reed’s vehicle struck the trailer, as well as a report of the Cobb County Medical Examiner opining that the cause of death resulted, in part, from thermal injuries, i.e., the fire. And the appellees did not object to this evidence in the trial court.

       OCGA § 40-6-391 (a) (5) provides as follows:
      A person shall not drive or be in actual physical control of any moving vehicle while: . . . The 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[.]

       OCGA § 40-6-180 provides as follows:
      No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing. Consistently with the foregoing, every person shall drive at a reasonable and prudent speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching and traversing a hill crest, when traveling upon any narrow or winding roadway, and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.

       OCGA § 40-6-48 (1) provides as follows:
      A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety[.]

       SeeGa. L. 2005, p. 1, § 12. The addition of OCGA § 51-12-33 (g) did not represent a change in the law regarding contributory negligence. As explained above, the legislature wrote the existing common-law rule regarding a plaintiff’s contributory negligence into OCGA § 51-12-33 (g). Couch, 291 Ga. at 365.


author: MCFADDEN, Judge.

text:
    A13A1662.
    BOSTICK v. CMM PROPERTIES, INC. et al.
    (755 SE2d 895)
   MCFADDEN, Judge.

This is an appeal from a grant of summary judgment to third-party defendants. Because the trial court correctly ruled that the claims against the third-party defendants are barred by res judicata, we affirm.

On appeal from the grant of summary judgment, we conduct a de novo review of the evidence to determine whether there is 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. Campbell v. The Landings Assn., 289 Ga. 617, 618 (713 SE2d 860) (2011).

So viewed, the evidence shows that in January 1992, Diversified Capital Management, Inc. leased premises designated as a grocery store to James Bostick. In August 1992, Diversified assigned its rights as lessor to Ingram Timber Enterprises, L.P. In October 2000, Bostick, with the approval of Ingram, subleased the property to CMM Properties, Inc. The sublease was subject to all terms of the original lease, referred to by the parties as the “Master Lease.”

In June 2005, Ingram filed suit in superior court against CMM and three individual guarantors of the sublease (collectively “the CMM parties”), but not against Bostick. Ingram claimed default under the terms of the master lease and sublease and sought liquidated damages under paragraph 22 of the master lease. The trial court granted summary judgment to the CMM parties, finding that the purported liquidated damages sought under paragraph 22 constituted a void and unenforceable penalty. Ingram never appealed that final judgment.

In January 2010, Ingram filed a second lawsuit, this time against Bostick, seeking the same liquidated damages sought in the first lawsuit. Bostick then filed a third-party complaint against the CMM parties, claiming that if he is found liable to Ingram, then the CMM parties are liable to him. The CMM parties moved for summary judgment, asserting, among other things, res judicata based on the judgment in the first case.

Before the trial court ruled on that motion, Ingram and Bostick entered into a consent judgment, which provided that Ingram was entitled to judgment in excess of $1 million. However, Ingram and Bostick further agreed in the consent judgment that Ingram would not attempt to collect the judgment. Instead, the consent judgment would be satisfied by Bostick pursuing the case against the CMM parties. And they agreed that Ingram would get two-thirds and Bostick one-third of whatever amount, if any, was collected from the CMM parties.

The trial court subsequently granted the CMM parties’ motion for summary judgment, finding, among other things, that the doctrine of res judicata precludes the present action; that the remedy provisions of the master lease are void and unenforceable penalties; and that under the terms of the consent judgment between Ingram and Bostick, there is no real threat of liability for Bostick and thus no secondary liability to be recovered by the third-party action. Bostick appeals.

1. Venue.

The trial court found that venue, which was premised on defendant Bostick, had vanished as a result of the consent judgment which effectively insulated him from liability. Despite that finding, the trial court did not transfer the case to another court where it believed venue was appropriate, as it should have done if venue had in fact vanished. See Ga. Const, of 1983, Art. VI, Sec. I, Par. VIII (“[a]ny court shall transfer to the appropriate court in the state any civil case in which it determines that jurisdiction or venue lies elsewhere”). However, we agree with Bostick that venue had not vanished.

OCGA § 9-10-34 (c) states that venue for a third-party defendant “is dependent upon the venue over the defending party who brought the third-party defendant into the action, and if venue is lost over said defending party, whether through dismissal or otherwise, venue shall likewise be lost as to the third-party defendant.” (Emphasis supplied.) Here, Bostick was not dismissed from the case and the suit against him has not otherwise been terminated. Even if the consent judgment insulated him from any real threat of liability, it did not remove him from the case, and in fact required that he continue in the case. In an analogous situation involving joint tortfeasors, we held that the entry of a consent judgment does not equate with a discharge from liability or dismissal resulting in a loss of venue. Nalley v. Baldwin, 261 Ga. App. 713, 715 (583 SE2d 544) (2003). Accordingly, venue was appropriate in the trial court and its finding to the contrary was erroneous. However, the error was harmless given that the court retained the case and, as explained below, correctly granted summary judgment on a separate basis.

2. Res judicata.

Bostick argues that the trial court erred in granting summary judgment based on res judicata because he was not a party to the first suit. But because Bostick and the CMM parties are in privity with one another, the argument is without merit.

The doctrine of res judicata is codified at OCGA § 9-12-40, which provides: “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.”

The doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action. Res judicata prevents a plaintiff from instituting a second complaint against a defendant on a claim that has already been brought, after having previously been adjudged not to be entitled to the recovery sought on that claim. Three prerequisites must be satisfied before res judicata applies — (1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.

Kennedy Dev. Co. v. Newton’s Crest Homeowners’ Assn., 322 Ga. App. 39, 41-42 (743 SE2d 600) (2013) (citations and emphasis omitted).

In this case, there is no dispute that the previous case was adjudicated by a court of competent jurisdiction. As for identity of parties, Ingram and the CMM parties were, of course, parties in both the first and second suits. Bostick’s contention that res judicata does not apply since he was not a party to the first suit is incorrect. The doctrine applies to claims adjudicated “between identical parties or their privies.” Kennedy Dev. Co., supra at 41 (emphasis supplied).

Generally speaking, privies are those legally represented at trial. Privity connotes those who are in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right; and where this identity is found to exist, all are alike concluded and bound by the judgment.

Pinkard v. Morris, 215 Ga. App. 297, 298 (1) (450 SE2d 330) (1994) (citations and punctuation omitted). Bostick and the CMM parties are so connected by the sublease and master lease as to have an identity of interest in defending against liability for the alleged default under the leases. In the first suit, the CMM parties successfully represented that same legal right by obtaining summary judgment in their favor, and Bostick, as a privy, is bound by that judgment.

Bostick has not challenged the trial court’s res judicata ruling on the basis of identity of cause of action. Nevertheless, a review of the record confirms the trial court’s ruling that there is identity of the claims in the first and second lawsuits brought by Ingram. As the trial court found, the complaints and demand letters in both actions sought liquidated damages pursuant to subsection (a) of paragraph 22 of the master lease. Moreover, Ingram’s managing partner and primary stockholder, Otis Ingram, testified at his deposition that the damages he sought in the second suit were the same damages sought in the first suit. We recognize that the day before Ingram and Bostick filed their consent judgment, Ingram filed an amendment to its complaint adding a claim for damages under subsection (e) of paragraph 22 of the master lease. However, as recited above, the “doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated” in the first action. Kennedy Dev. Co., supra at 41 (emphasis in original). “Specifically, one must assert all claims for relief concerning the same subject matter in one lawsuit and any claims for relief concerning that same subject matter which are not raised will be res judicata.” Dove v. Ty Cobb Healthcare Systems, 316 Ga. App. 7, 10 (1) (729 SE2d 58) (2012) (citations and punctuation omitted). In his first action, Ingram could have asserted a claim for damages under any of the remedy provisions set forth in paragraph 22 of the master lease. Thus, Ingram’s amended complaint with a claim under paragraph 22 (e) does not change the fact that “[t]he subject matter was identical in both actions. [Ingram] had a full opportunity in the first action to litigate each and every claim existing between the parties which touched on the issue of [the alleged] violation of the lease agreement. It was [Ingram’s] duty to do so.” Buford-Clairmont Co. v. Cato Corp., 241 Ga. App. 50, 54 (4) (526 SE2d 104) (1999) (citation and punctuation omitted) (physical precedent only).

Decided March 26, 2014

Reconsideration denied April 14, 2014

Anderson, Walker & Reichert, Jonathan A. Alderman, Donyale N. Leslie, for appellant.

Because there is identity of the first and second causes of action, identity of the parties or their privies, and a prior adjudication by a court of competent jurisdiction, the trial court correctly ruled that the instant suit is barred by the doctrine of res judicata, and that the CMM parties, as third-party defendants, were entitled to summary judgment on this ground. See OCGA § 9-11-14 (a) (third-party defendant may assert against the plaintiff any defenses which the third - party plaintiff has to the plaintiff’s claim); Empire Shoe Co. v. Nico Indus., 197 Ga. App. 411, 413 (1) (398 SE2d 440) (1990) (third-party defendants entitled to summary judgment on any ground that could have been raised by the original defendant/third-party plaintiff against the plaintiff).

3. Remaining enumerations.

Given our holding in Division 2, we need not address the remaining claims of error as a grant of summary judgment must be affirmed if right for any reason. Travelers Excess & Surplus Lines Co. v. City of Atlanta, 297 Ga. App. 326 (677 SE2d 388) (2009).

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.

Spurlin & McCorvey, John C. Spurlin, for appellees.


author: MCFADDEN, Judge. BOGGS, Judge,

text:
    A13A1722.
    LAVELLE et al. v. LABORATORY CORPORATION OF AMERICA.
    (755 SE2d 595)
   MCFADDEN, Judge.

Plaintiff Timothy Lavelle, individually and as the surviving spouse and executor of the estate of Cathleen Lavelle, brought this action against a physician, a medical practice, appellee Laboratory Corporation of America (“LabCorp”), and John Does 1-10, seeking damages for alleged ordinary and professional negligence in failing to diagnose and treat Cathleen Lavelle’s cervical cancer in a timely fashion. This appeal concerns only the single allegation against LabCorp that its employee was negligent in failing to detect abnormal cells on a Papanicolaou (“Pap”) smear test slide submitted to it in April 2006. Lavelle appeals three rulings of the trial court: (1) the denial of a motion to compel further deposition of a witness; (2) the grant of a motion excluding the testimony of an expert witness; and (3) the grant of partial summary judgment in favor of LabCorp on the issue of breach of the standard of care. For the reasons stated below, we affirm the denial of the motion to compel but vacate the grant of the motion to exclude the expert testimony and the grant of partial summary judgment, and we remand the case to the trial court for further proceedings not inconsistent with this opinion.

The parties have engaged in extensive discovery and have presented over 4,000 pages of record to this court, including numerous depositions of fact and expert witnesses. During the discovery period, Lavelle filed a motion to compel and for sanctions regarding the testimony of a LabCorp employee, which was denied. On September 7, 2011, the trial court entered a consent “Scheduling Order” setting dates for, among other things, the disclosure and deposition of expert witnesses and the filing of Daubert motions, see Daubert v. Merrill Dow Pharmaceuticals, 509 U. S. 579 (113 SCt 2786, 125 LE2d 469) (1993), and motions for summary judgment. LabCorp filed timely motions to exclude the testimony of three expert witnesses and for summary judgment. The trial court granted those motions in part, and this appeal followed.

1. Motion to compel.

Lavelle first enumerates as error the denial of his motion to compel. In 2011, Lavelle deposed the cytotechnologist (“cytotech”) at LabCorp who, in 2006, performed the initial review of the Pap smear test slide at issue here. At that time, the cytotech reviewed approximately 140 slides per day, using a computer-guided microscope that selected 22 sample fields of view for her examination. She had no recollection of having reviewed the particular slide at issue here. During her deposition, she was shown photomicrographs of the slide and asked if, in her opinion, the cells presented any abnormalities. Counsel for LabCorp objected and instructed the witness not to answer the question. The witness testified that she did not screen slides by examining photomicrographs, and that the photomicrographs presented a different appearance from the slides she normally reviewed. In addition, as Lavelle acknowledged, there is no way to tell if the photomicrographs show the same cells that the computer-generated views displayed in 2006. Moreover, the witness explained, she would look at the slide today “with different eyes... [b] ecause you look at things with bias hindsight. You look at things — you look at things differently that way.”

The trial court denied Lavelle’s motion to compel, finding that this line of questioning was not discoverable or likely to lead to the discovery of admissible evidence because no proper foundation was established to show that the photomicrographs were representative of what the witness saw at the time, because she was a fact witness being asked for an expert opinion, and because hindsight bias affected what “she would see now, looking at something she didn’t look at back in 2006.”

“The trial court’s discretion in dealing with discovery matters is very broad, and this Court has stated on numerous occasions that it will not interfere with the exercise of that discretion absent a clear abuse.” Powers v. Southern Family Markets, 320 Ga. App. 478, 482 (3) (740 SE2d 214) (2013) (citations, punctuation and footnote omitted). Given the applicable standard and the significant differences between the witness’s original review of the slide and the review which Lavelle sought to elicit on her deposition, as well as the witness’s expressed hindsight bias given her knowledge of the outcome, we cannot say that the trial court abused its broad discretion in limiting the examination of the witness. We therefore affirm the ruling denying the motion to compel.

2. Exclusion of expert testimony.

Lavelle next appeals the trial court’s exclusion, in part, of the testimony of expert witness Dorothy Rosenthal, M.D., a staff pathologist and professor of pathology oncology at Johns Hopkins with experience in the fields of cytotechnology and interpretive slides. She opined that the cytotech’s initial review of the slide in this case breached the applicable standard of care. In both her deposition and a hearing on LabCorp’s Daubert motion, Dr. Rosenthal testified that she formed her opinion about a breach of the applicable standard of care from her personal, focused reviews of the slide. She described her experience and the methodology she used in conducting focused reviews, and she opined that the abnormalities she observed in the focused reviews of the slide should have been recognized and identified as such by any certified cytotech. In her deposition, Dr. Rosenthal described this case as a “blatant miss” and testified that another procedure referred to as a blinded review was not necessary to form an opinion in such a case. Nevertheless, at both her deposition and the hearing she testified that the results of two blinded reviews in this case corroborated her already-formed opinion that the applicable standard of care had been breached.

After the hearing, the trial court held that Dr. Rosenthal could give expert testimony on several topics, including the applicable standard of care for a cytotech, the abnormalities that Dr. Rosenthal observed on the Pap smear slide, and the requirement that a cytotech refer a slide with such abnormalities to a pathologist. But the trial court held that Dr. Rosenthal could not give an opinion about whether LabCorp’s employee breached the applicable standard of care in this case. In her written order on the Daubert motion, the trial court excluded evidence of the two blinded reviews on the ground that they didnotsatisfythereliabilityrequirementsofformerOCGA § 24-9-67.1 and Daubert. The trial court also ruled in the written order that Dr. Rosenthal could not give an expert opinion on a breach of the applicable standard of care because the blinded reviews were the “only bases for that opinion.” (Emphasis supplied.) Nowhere in the written order did the trial court refer to the focused reviews upon which Dr. Rosenthal testified that she had based her opinion.

The trial court’s written order incorporated by reference the hearing transcript, and at the hearing the trial court made some additional oral rulings that were not included in the written order. Again, none of those rulings expressly referred to the focused reviews or addressed the reliability of that methodology. Instead, the trial court stated that blinded reviews were the only methodology that the expert could use to reach an opinion on a breach of the applicable standard of care. The trial court cited standards promulgated by professional associations in support of this ruling.

Former OCGA § 24-9-67.1 (b), which applied at the time of the trial court’s ruling in this case, provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact in any cause of action to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data which are or will be admitted into evidence at the hearing or trial; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case.

Our Supreme Court has enunciated the standards under which a trial court reviews the testimony of an expert witness for admission under former OCGA § 24-9-67.1:

In determining the admissibility of expert testimony, the trial court acts as a gatekeeper, assessing both the witness’ qualifications to testify in a particular area of expertise and the relevancy and reliability of the proffered testimony. . . . Reliability is examined through consideration of many factors, including whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the general degree of acceptance in the relevant scientific or professional community, and the expert’s range of experience and training. There are many different kinds of experts and many • different kinds of expertise, and it follows that the test of reliability is a flexible one, the specific factors neither necessarily nor exclusively applying to all experts in every case.

HNTB Ga. v. Hamilton-King, 287 Ga. 641, 642-643 (1) (697 SE2d 770) (2010) (citations and punctuation omitted). We will not disturb the trial court’s determination absent a manifest abuse of discretion. Id. at 642 (1).

In excluding Dr. Rosenthal’s opinion, the trial court abused her discretion in two ways. First, the trial court erred to the extent she held that the only acceptable methodology for reaching an opinion about whether a cytotech breached the applicable standard of care was the blinded review methodology promoted and promulgated by a professional association representing cytotechs. We are aware of no legal authority — legislative or judicial — that directs the specific methodology an expert must use to establish a breach of the standard of care in a professional malpractice case. The objective of the gatekeeping requirement set forth in Daubert and in former OCGA § 24-9-67.1 is not to establish or enforce a particular methodology. It is

to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.

Kumho Tire Co. v. Carmichael, 526 U. S. 137, 152 (II) (B) (119 SCt 1167, 143 LE2d 238) (1999). See generally former OCGA § 24-9-67.1 (f) (explaining that Georgia courts may draw from federal cases, including Daubert and Kumho Tire Co., to interpret and apply that Code section). Accordingly, in another case involving opinion testimony from Dr. Rosenthal, the United States District Court for the Northern District of Georgia stressed that in excluding her testimony it was not holding that the methodology set forth in the professional association guidelines was “the only methodology that would allow an expert to offer an opinion on the standard of care for a cytotechnologist in reviewing Pap smear slides.” Adams v. Laboratory Corp. of America, 2012 U. S. Dist. LEXIS 13582 at *48-49 (6), n. 11 (N.D. Ga. 2012).

Dr. Rosenthal did not testify that blinded reviews were the only means by which one could form a reliable opinion regarding a breach of the applicable standard of care. To the contrary, as mentioned above, Dr. Rosenthal consistently testified that she based her opinion on that issue on her focused reviews, and that the blinded reviews merely corroborated that opinion.

Dr. Rosenthal did describe certain specific requirements in “asserting a violation of the standard of care” that were inapplicable to focused reviews. But that testimony pertained only to blinded reviews. It occurred during a discussion about the requirements and the professional association guidelines for a blinded review. The trial court did not treat that testimony as an admission related to the focused reviews. In her oral ruling, the trial court described the testimony as an “admission ... that [Dr. Rosenthal’s] blinded review cannot meet the requirements of Daubert for determining the guidelines.”

The trial court also abused her discretion by not conducting a Daubert analysis of the methodology that Dr. Rosenthal did employ in reaching her opinion—the focused reviews. The trial court neither mentions the focused reviews in the written or oral rulings, nor indicates that she considered whether, apart from the blinded reviews, the focused reviews could form the basis for a reliable opinion that met the requirements offormer OCGA § 24-9-67.1 (b). While the trial court was not required to make specific findings of fact relating to these statutory requirements, see CSX Transp. v. McDowell, 294 Ga. App. 871, 872-873 (1) (a) (670 SE2d 543) (2008), the trial court’s rulings did not “adequately demonstrate [ ] that the trial court performed its role as gatekeeper,” id. at 873 (1) (a), with regard to the reliability of an opinion based upon focused reviews rather than blinded reviews.

For this reason, we vacate the ruling excluding Dr. Rosenthal’s opinion and remand the case for the trial court to analyze the relevancy and reliability of her proffered opinion based upon focused reviews. See generally An v. Active Pest Control South, 313 Ga. App. 110, 114-115 (720 SE2d 222) (2011) (explaining that appellate courts generally should not decide in the first instance questions of the admissibility of expert testimony, the resolution of which often requires factfinding).

3. Motion for partial summary judgment.

In light of our decision to vacate the ruling excluding Dr. Rosenthal’s opinion on a breach of the applicable standard of care and to remand the case for further consideration on that issue, we also vacate the order granting partial summary judgment to LabCorp as that ruling was based in part on the exclusion of Dr. Rosenthal’s opinion testimony.

Judgment affirmed in part and vacated in part, and case remanded.

Phipps, C. J., Barnes, P. J., Ellington, P. J., and Doyle, P. J., concur. Boggs and Branch, JJ., concur in part and dissent in part.

BOGGS, Judge,

concurring in part and dissenting in part.

Because the majority has failed to adhere to the appropriate standard of review on appeal, I respectfully dissent to Divisions 2 and 3.

“The determination of whether a witness is qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion.” (Citation and punctuation omitted.) HNTB Ga. v. Hamilton-King, 287 Ga. 641, 642 (1) (697 SE2d 770) (2010). And the “trial court is granted the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” (Citation and punctuation omitted.) Anderson v. Atlanta Gas Light Co., 324 Ga. App. 801, 808 (1) (a), n. 15 (751 SE2d 589) (2013).

Here, the trial court noted, and Dr. Rosenthal testified, that review of a Pap smear is “one of the most fragile parts of the pathology discipline” and that it is a “screening test, not a diagnostic procedure.” Because interpretation of the slide is “inexact science” and “a subjective exercise,” two qualified experts may disagree in their interpretation of a particular slide (“interobserver variability”), and even the same expert may interpret the same slide differently at different times (“intraobserver variability”). In addition, because of the nature of the screening process, a cytotech as an “initial reviewer” has different training from a pathologist such as Dr. Rosenthal. A cytotech reviews a large number of slides per day, and Dr. Rosenthal agreed that, in contrast to her typical workload, which has already been selected as “high risk,” the “overwhelming majority, in fact, almost all” of the slides viewed by a cytotech are normal. Finally, in this case, a computer system applied an algorithm to select 22 restricted fields of view from the slide for the cytotech to examine through the microscope.

Testimony also was presented that reviews of Pap slides are subject to what is termed “hindsight bias.” Dr. Rosenthal acknowledged that Lavelle’s slide was brought to her by her attorney, and that “any time an attorney calls you up and says I have a pap slide, you know something bad has happened.” She testified that she was asked “to just verify... that I agreed there may be something wrong on the slides.” She testified that her knowledge that “something was wrong” caused her to “look at it differently from the way I would look at a pap coming through my regular caseload, absolutely.” In response to questioning from the trial court, Dr. Rosenthal acknowledged that her “first opinion was not obtained by putting [her] self in the shoes of what a cytotech would have done”; that she already knew that there was litigation and that she had already looked at the entire slide rather than a computer-guided segment. While Dr. Rosenthal testified that the slide contained abnormalities that should have been recognized by a cytotech, she formed that opinion in the context of her hindsight knowledge.

From this testimony, the trial court was within its discretion to conclude that the opinion of a physician pathologist interpreting a single slide which she knows to be abnormal is irrelevant in determining a breach of the standard of care on the part of a nonphysician cytotechnologist engaging in an initial screening review of numerous slides, almost all of which will be normal.

Moreover, Dr. Rosenthal acknowledged that even in the absence of any breach of the standard of care, “good” testing laboratories “have an error rate in the neighborhood of five to ten percent.” She testified that the College of American Pathologists (“CAP”) and the American Society of Cytopathology (“ASC”) have developed extensive guidelines for the retrospective evaluation of Pap smears in actual or potential litigation. She stated that the two sets of guidelines were “basically the same,” but “[t]he ASC guidelines were really more — I was trying to comply with those more than anything else.” Questioned by the trial court, Dr. Rosenthal agreed that

asserting a violation of the standard of care, the slides have to be assessed by qualified reviewers without knowledge of the clinical background in an environment that simulates normal screening, subjected to an unbiased screening process [ ], also with a substantial number of normal and abnormal gynecologic, cytologist sampling.* *

The majority essentially disagrees with the expert’s uncontradicted testimony in this case that her own “focused reviews” are therefore by her own admission inadequate to establish a breach of the standard of care. This does not adhere to the standard of review for the trial court’s assessment of expert testimony under Daubert.

The majority also asserts that the trial court should have included findings with regard to each element of a Daubert analysis regarding the focused reviews, even though the expert herself admitted that those reviews were inadequate. But we have already rejected that contention in CSX Transp. v. McDowell, 294 Ga. App. 871, 872-873 (1) (a) (670 SE2d 543) (2008), in which the appellant asserted

that the court’s order does not include specific findings and that the record does not contain certain discussion that addresses Daubert v. Merrell Dow Pharmaceuticals so as to affirmatively show that the court carried out its role as gatekeeper. But the Georgia General Assembly did not include any such requirement within OCGA § 24-9-67.1; [appellant] cites no binding authority that a trial court must nevertheless do so; and we decline to impose such a requirement. Generally, a trial court will be presumed to have performed its duties. Accordingly, we will presume that, when presented with a motion to exclude expert testimony as inadmissible under OCGA § 24-9-67.1, a trial court engages in the contemplated analysis in ruling thereupon.

(Citations and footnotes omitted.) Id. A remand for mere clarification of the trial court’s well-supported decision is a pointless exercise and a waste of scarce judicial resources.

The facts and circumstances of this case are unique, and this expert’s testimony was shaped in large part by the procedural posture of the case, including discovery deadlines and the plaintiff’s handling of his expert witnesses. The majority apparently feels that the trial court’s ruling here somehow forecloses any other “acceptable methodology” for showing such a breach, but we cannot speculate as to what the plaintiff could have shown, or might have shown, through the use of different experts or different testimony. Like the district court in Adams v. Laboratory Corp. of America, 2012 U. S. Dist. LEXIS 13582 (N.D. Ga. 2012), the trial court here was not making any general pronouncement on “the only acceptable methodology,” but simply ruling on the evidence before it, including the expert’s own testimony. The trial court gave the parties ample opportunity to brief the very issues that the majority complains of, and the plaintiff failed to provide that testimony.

Moreover, in contrast to this court, the trial court had the benefit not only of the witness’ lengthy deposition, numerous exhibits including scientific publications, and the detailed briefs of the parties, but also a lengthy hearing at which the expert witness testified and was questioned by the trial court. The trial court carefully reviewed the entire record and entered a lengthy, detailed, comprehensive order excluding part of the expert’s testimony, pointing out specific evidence in detail, including impermissible hearsay, that demonstrated a lack of reliability of the expert’s methodology. The trial court’s decision to exclude this testimony was not a manifest abuse of its discretion.

For the same reasons, I dissent to Division 3 of the majority.

It is a legal inference or assumption that physicians, nurses, and other medical professionals exercise due care and skill in their treatment of a patient based on their education, training, and experience. To overcome the presumption in the typical case, the injured patient must present evidence from expert medical witnesses that the defendants did not exercise due care and skill in performing their services.

Decided March 28, 2014

Reconsideration denied April 14, 2014.

Thomas W. Malone, Frank A. Ilardi, Summerville Moore, J. Darren Summerville, S. Leighton Moore III, for appellants.

Paul E. Weathington, Jones Day, Lillian N. Caudle, Kacy G. Romig, Houck & Regas, M. Paul Reynolds, for appellee.

Lyle G. Warshauer, amicus curiae.

(Citations and footnote omitted.) Beach v. Lipham, 276 Ga. 302, 304 (1) (578 SE2d 402) (2003). In Anderson, supra, 324 Ga. App. at 814-815 (2), we faced a very similar issue: when the plaintiff’s expert testimony was excluded, no evidence remained that the defendant “violated any applicable regulations or standards of care,” and the trial court correctly ruled that without admissible expert testimony the plaintiffs could not prevail. Id. at 815 (2). Here, all expert testimony with respect to the breach of a cytotech’s standard of care was properly excluded. LabCorp therefore was entitled to summary judgment as a matter of law. Id.; Vaughan v. WellStar Health System, 304 Ga. App. 596, 602 (4) (696 SE2d 506) (2010).

I therefore respectfully dissent.

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

       Dr. Rosenthal testified that “the slides have to be assessed by qualified reviewers without knowledge of the clinical background in an environment that simulates normal screening, subjected to an unbiased screening process [ ], also with a substantial number of normal and abnormal gynecologic, cytologist sampling.”

       While the trial court did not explicitly rule in its final order that Dr. Rosenthal’s focused reviews could not form the basis for an opinion on the breach of the standard of care, it did rule on the issue. After the trial court’s oral rulings that it would not consider the focused reviews, Lavelle filed a “Motion for Reconsideration of the Trial Court’s Ruling on the Necessity for ‘Blinded Reviews’ ” in which he noted each of the trial court’s rulings. The trial court expressly denied this motion for reconsideration in its final order.

       This testimony forecloses the majority’s contention that the trial court was improper in holding that, under the evidence presented in this case, the blinded reviews were the only proper foundation for the expert’s opinion.

       Unlike the majority, we do not rely upon Adams in support of our decision here, even though the district court excluded the same expert witness’ testimony on the same issue, because the procedural posture, facts, and testimony are necessarily different.


author: DOYLE, Presiding Judge. McFadden, Judge,

text:
    A13A1733.
    LAM v. ALLSTATE INDEMNITY COMPANY.
    (755 SE2d 544)
   DOYLE, Presiding Judge.

Bing Chi Lam filed suit against Allstate Indemnity Company to enforce an appraisal provision in his Allstate homeowners’ insurance policy following damage to his roof. Allstate filed a motion to dismiss for failure to state a claim, and the trial court granted the motion following a hearing. Alternatively, the trial court also dismissed Lam’s complaint pursuant to Uniform Superior Court Rule 14 based on his failure to attend the motion hearing and/or to prosecute his case. Lam appeals, and for the reasons that follow, we affirm.

Lam’s homeowners’ policy issued by Allstate covered his dwelling against “sudden and accidental direct physical loss,” including but not limited to, loss to a roof caused by hail and windstorms. The policy contained a provision providing for an appraisal procedure to determine the amount of loss if the parties were unable to agree upon such following a covered loss.

According to Lam, his roof was damaged by high winds and hail, and he timely reported the damage to Allstate. After a claims representative inspected Lam’s roof, Allstate determined that it sustained wind damage to four shingles and that there was ceiling damage in Lam’s bedroom and kitchen, and Allstate provided Lam with an estimate to repair the shingles and ceiling in the amount of $783.06. Lam did not agree on the amount of the loss, and he wrote to Allstate requesting that the amount of loss be determined pursuant to the appraisal provision contained in his policy. Allstate responded to Lam in writing, conceding that it had determined that four shingles were damaged by wind and there was damage to his interior ceiling, all covered by the policy. According to Allstate, the estimates provided by Lam did not differ from Allstate’s appraisal with respect to the cost of replacing the shingles, but instead improperly sought complete replacement of all of the shingles on his roof. Stating that “[c] overage was not granted to replace all the shingles as there was not damage to warrant such,” Allstate concluded that the appraisal provision was “not applicable” because “the difference in estimates . . . [relates to] coverage rather than pricing.” Allstate did not deny coverage or provide any additional explanation of benefits.

Lam filed suit against Allstate seeking only to enforce the appraisal provision in his policy. Allstate filed a motion to dismiss for failure to state a claim, arguing that the appraisal provision was not available to Lam because it could not be used to settle disputes over coverage. Following a hearing, the trial court granted the motion and, alternatively, dismissed Lam’s complaint for failure to prosecute based on his failure to attend the hearing. This appeal followed.

1. Lam argues that the trial court erred by granting Allstate’s motion to dismiss for failure to state a claim upon which relief can be granted. We disagree.

“We review de novo the trial court’s grant of a motion to dismiss.”

A motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

Here, the appraisal provision contained in Lam’s homeowners’ policy provides that if Lam and Allstate

fail to agree on the amount of the loss, either party may make written demand for an appraisal. Upon such demand, each party must select a competent and impartial appraiser. . . . The appraisers will select a competent and impartial umpire____ The appraisers then determine the amount of loss____If they cannot agree, they shall submit their differences to the umpire. A written award agreed upon by the appraisers or an appraiser and the umpire will determine the amount of loss.

Allstate argues that the appraisal provision is not applicable in this case because the parties’ dispute is, in essence, a dispute over coverage. The Supreme Court of Georgia has held that

an appraisal clause can only resolve a disputed issue of value. It cannot be invoked to resolve broader issues of liability. To invoke an appraisal clause to eliminate... issues of liability . . . would be impermissible, as it would expand the scope of the appraisal clause beyond the issue of value. It would be tantamount to converting the appraisal clause into an arbitration clause, which is the type of clause that would be invoked to address such broader issues. Arbitration clauses, however, are impermissible in contracts between insurers and insureds.

Here, although Allstate had conceded that there was wind damage to Lam’s roof and agreed to pay for it, the parties could not agree upon the extent of the damage — how much of the roof was damaged by the wind. Their disagreement, therefore, was over coverage, which is not a proper basis for an appraisal. Accordingly, the trial court did not err by granting Allstate’s motion to dismiss for failure to state a claim.

2. In light of our holding in Division 1, we need not address Lam’s enumeration that the trial court abused its discretion by dismissing his complaint for want of prosecution based on his failure to attend the hearing.

Judgment affirmed.

Phipps, C. J., Boggs and Branch, JJ., concur. Barnes, P. J., Ellington, P. J., and McFadden, J., dissent.

McFadden, Judge,

dissenting.

The trial court’s order dismissed Lam’s complaint on two alternative grounds — because he failed to appear at the hearing on the motion to dismiss to prosecute his complaint, and because his complaint failed to state a claim. I would affirm the dismissal for failure to prosecute, which is without prejudice. But I would reverse the dismissal for failure to state a claim, which implicated res judicata. Accordingly, I would affirm in part and reverse in part the trial court’s order, and I respectfully dissent to the majority opinion, which affirms that order on the ground that Lam failed to state a claim and does not reach the issue of Lam’s failure to prosecute.

1. Dismissal for failure to prosecute.

The trial court dismissed Lam’s complaint for his “failure to attend court and defend and/or prosecute [his] case.” Although Lam argues that the trial court lacked jurisdiction to dismiss his case on this ground because he previously had dismissed the case for failure to state a claim, the order states that these were alternative grounds for dismissal. And Uniform Superior Court Rule 14 authorized the trial court to dismiss for failure to prosecute. That rule provides that “[o]n its own motion or upon motion of the opposite party, the court may dismiss without prejudice any civil action, or where appropriate, any pleading filed on behalf of any party upon the failure to properly respond to the call of the action for trial or other proceeding.” USCR 14. See also OCGA § 9-11-41 (b) (dismissal for failure to prosecute does not operate as adjudication on merits). This court reviews an order to dismiss on this ground for abuse of discretion. McKnight v. Wyrick, 247 Ga. App. 584, 585-586 (544 SE2d 507) (2001).

The record shows that the trial court issued a rule nisi scheduling the hearing on Allstate’s motion to dismiss for failure to state a claim. Neither Lam nor his counsel appeared. The court contacted Lam’s counsel, who indicated that he was in Florida and had filed a conflict letter. That letter stated that counsel “was scheduled to attend several depositions in Birmingham, Michigan” on the same day of the hearing in the instant case, specifically identifying the case name and number of the case involving the depositions. The letter also requested “that the court continue this matter to the next available date.” Counsel, however, did not follow up with the trial court to determine whether his request for a continuance had been granted.

After reviewing the letter, the trial court correctly concluded that the letter did not comply with USCR 17.1. Rule 17.1 requires an attorney who is lead counsel in two or more actions scheduled for the same time to make an attempt to resolve the conflict and propose a resolution in compliance with the Rule’s order of priorities. See Amtrust North America v. Palmer Trucking & Leasing, 316 Ga. App. 585, 586 (1) (730 SE2d 65) (2012). Lam’s counsel did not indicate that he had attempted to resolve the conflict, nor did he propose a resolution of the conflict in the order specified in the Rule. And to the extent that his counsel intended the letter to serve as a motion for continuance, he made no attempt to obtain a ruling thereon. Rule 17.1 provides that an attorney “shall not be deemed to have a conflict” under these circumstances. USCR 17.1 (A).

In reviewing an order dismissing a case for want of prosecution, this court “will not substitute [its] judgment for the trial court’s judgment where there is no obvious abuse of discretion. In this case, [I] find no clear abuse of discretion so as to authorize reversal.” McKnight, 247 Ga. App. at 586 (citations omitted).

2. Dismissal for failure to state a claim.

Affirming the trial court’s dismissal of Lam’s complaint for want of prosecution, however, would not end this case. The trial court also dismissed the complaint on the alternative ground that Lam failed to state a claim. While the dismissal for want of prosecution is without prejudice, see USCR 14, the dismissal for failure to state a claim is an adjudication on the merits implicating the doctrine of res judicata. See Brown v. J. H. Harvey Co., 268 Ga. App. 322, 324 (3) (601 SE2d 808) (2004). Accordingly, the trial court’s order contained two separate rulings with different legal consequences for Lam. For the following reasons, I find that the trial court erred in dismissing the complaint on its merits.

As the majority notes, “[arbitration clauses . . . are impermissible in contracts between insurers and insureds.” McGowan v. Progressive Preferred Ins. Co., 281 Ga. 169, 172-173 (637 SE2d 27) (2006) (citations omitted). OCGA § 9-9-2 (c) (3) excepts such contracts from the Georgia Arbitration Code. That Code section “establishes the public policy of Georgia that insureds shall not be compelled by the terms of an insurance contract written by the insurer to give up their common law right to access to the courts to resolve disputes arising under the contract.” Continental Ins. Co. v. Equity Residential Properties Trust, 255 Ga. App. 445, 446 (565 SE2d 603) (2002) (citations omitted).

In McGowan v. Progressive Preferred Ins. Co., supra, 281 Ga. 169, our Supreme Court has explained that this prohibition against arbitration does not extend to a provision within an insurance contract establishing a process for settling disputes over the appraised value of an insured’s covered loss, because such a determination does not address broader issues of the insurer’s liability. McGowan, 281 Ga. at 171-172. This distinction makes sense in light of Georgia’s public policy. While the terms of an insurance contract determine whether a particular loss is covered, they generally do not establish the amount of the loss. As explained by the Supreme Court of Texas in a dispute over the extent of hail damage to the roof of a house, the “amount of loss” as contemplated in a similarly-worded appraisal provision cannot involve a construction of the insurance policy or a determination of whether the insurer should pay. State Farm Lloyds v. Johnson, 290 SW3d 886, 890 (III) (Tex. 2009).

The parties’ dispute in this case does not require either a construction of the insurance policy or a determination of whether the insurer should pay. The policy’s coverage provisions are clear, as is Allstate’s liability under them. Allstate has agreed to “cover sudden and accidental direct physical loss to property described in Coverage A — Dwelling Protection . . . except as limited or excluded in this policy.” The policy describes the covered property as “[y]our dwelling.” And, pertinent to this case, the policy excepts from coverage loss “consisting of or caused by . . . [w]ear and tear, aging, marring, scratching, deterioration, inherent vice, or latent defect.” There is no dispute that Lam’s dwelling incurred some loss that is covered by the policy and that Allstate is therefore liable to Lam to some degree. The dispute is the amount of that covered loss or damage — whether the covered loss or damage extends to the entire roof or only specific shingles. This dispute is subject to resolution under the policy’s appraisal provision, see State Farm Lloyds, 290 SW3d at 891 (IV) (A) (“To the extent the parties disagree which shingles needed replacing, that dispute would fall within the scope of [the] appraisal.”), and the trial court erred in dismissing, for failure to state a claim, Lam’s action seeking to enforce that provision.

I am authorized to state that Presiding Judge Barnes and Presiding Judge Ellington join in this dissent.

Decided March 26, 2014

Reconsideration denied April 14, 2014

Winter Capriola Zenner, Marvin P. Pastel II, Thomas E. Cardone, for appellant.

Webb, Zschunke, Neary &Dikeman, William E. Zschunke, Melissa C. Patton, for appellee.

       In Count 1 of the complaint, Lam asserted a demand for appraisal, and in Count 2, he sought a declaratory judgment regarding the rights of Lam and Allstate under the policy as it related to appraisal of the claim.

       (Punctuation omitted.) South Point Retail Partners v. North American Properties Atlanta, 304 Ga. App. 419, 420 (696 SE2d 136) (2010).

       (Citation and punctuation omitted.) Stendahl v. Cobb County, 284 Ga. 525, 525-526 (1) (668 SE2d 723) (2008).

       The policy did not define the phrase “amount of loss.”

       (Citations omitted.) McGowan v. Progressive Preferred Ins. Co., 281 Ga. 169, 172-173 (637 SE2d 27) (2006), citing OCGA § 9-9-2 (c) (3) (barring arbitration provisions in “[a]ny contract of insurance . . .”).