author: Phipps, Presiding Judge.

text:
    A12A0001.
    BYRD v. UNITED SERVICES AUTOMOBILE ASSOCIATION.
    (729 SE2d 522)
   Phipps, Presiding Judge.

Barry C. Byrd filed suit against United Services Automobile Association (USAA), alleging breach of contract and bad faith in connection with USAA’s decision to deny his insurance claim for the purported theft loss of a vehicle belonging to him and insured by USAA. Byrd filed a motion for partial summary judgment, which the trial court did not expressly rule on; and USAA filed a cross-motion for summary judgment, which the trial court granted. Byrd appeals from the grant of the cross-motion for summary judgment. Because there exists evidence from which a jury could find that the loss was covered by the theft provisions of the policy, we reverse.

Summary judgment is proper when there is no genuine issue of material fact remaining for jury resolution and the movant is entitled to judgment as a matter of law. We apply a de novo standard of review to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the evidence shows that Byrd owned a 2005 Lamborghini vehicle which, on March 4, 2008, he parked at a car dealership belonging to David Jordan. On several previous occasions, Byrd had sold to Jordan cars he had parked on Jordan’s lot, when a buyer expressed an interest in purchasing a car. Byrd and Jordan had established a routine practice whereby if Jordan had an interested buyer, Byrd would sell the car to Jordan after they had agreed on a sale price. Byrd would sign over to Jordan only, title to the vehicle. And Jordan would then sell the car to the interested buyer. Concerning his vehicles, Byrd never had business dealings with Jordan’s brother (who apparently was also in the car dealership business and possibly worked with Jordan).

Some time after he had left the Lamborghini at the dealership, he traveled back to the dealership, and his vehicle was not there; Jordan’s brother informed Byrd that he (Jordan’s brother) had sold the vehicle. Jordan called Byrd about a week later and also told him that the vehicle had been sold; and on May 24,2008, Byrd agreed with Jordan to a sales price of $225,000, which was to be paid to Byrd by Jordan within 30 days. On this same day, Byrd canceled the insurance policy he had maintained with USAA on the vehicle.

The car dealer for the buyer deposed that in April 2008 she contacted Jordan’s brother, with whom she negotiated the purchase of the vehicle, and by May 13, 2008, she had paid to Jordan’s brother the purchase price of $225,000 for the vehicle. The dealer stated that Jordan’s brother informed her that the owner of the vehicle had consented to the sale, and that he would obtain the title from the bank and mail it to her. On May 22, 2008, the dealer took possession of the vehicle. The dealer, however, never obtained the title to the vehicle.

According to Byrd, when Jordan contacted him on May 24, Jordan told him that the buyer had made only partial payment of the sales price; Byrd deposed that upon filing in July 2008 a theft report with the police, he learned the buyer’s identity, contacted her, and learned that she had paid more than $200,000 for the vehicle. Byrd stated that he had never agreed to sell the vehicle.

By June 30,2008, Jordan’s car dealership had closed, and neither Jordan nor his brother could be located. The vehicle was not returned to Byrd, who claimed he had never been paid for the vehicle. Byrd continued to make payments for the vehicle to Wachovia Bank, which had financed the vehicle for Byrd and retained the title.

Byrd had insurance coverage on the vehicle through USAA pursuant to a policy which covered loss due to theft. On July 21,2008, Byrd filed with USAA a theft loss claim, which USAA denied on the ground that there had not been a criminal taking of the vehicle and there was no felonious intent to steal the vehicle.

In its order granting USAA’s cross-motion for summary judgment, the trial court stated that “there can be no recovery under [the insurance] policy for a loss asserted from theft in the absence of proof of the existence of a felonious intent on the part of the taker.” Thereafter, the court concluded that “there was no event of loss which is covered by the insurance policy at issue.” The court found that Byrd had left the vehicle with Jordan voluntarily and “knew at the time the vehicle was left that it could be sold while it was at the dealership.” “[E]ven assuming,” the court held, “that the car was sold without any right, [Byrd] shortly thereafter ratified and agreed to the sale and the sales price.” And the “fact that Jordan later absconded and fled the country before paying the . . . purchase price is not material or relevant to the ratification of the sale, itself.”

USAA asserts, “Simply put, there is no dispute that the proceeds from the sale of [Byrd]’s vehicle were stolen. However, [Byrd] failed to come forward with any evidence that the vehicle itself was stolen at the time [Byrd]’s insurance policy was in effect.” Byrd contends that the trial court erred in finding that the vehicle was not stolen; Byrd argues that the loss of his vehicle resulted from a theft by taking and theft by conversion which were covered under the insurance policy. Byrd also contends that the trial court erred in finding that he ratified the sale of his vehicle; Byrd argues that he did not have full knowledge of all the material facts. For the reasons set forth below, we reverse.

In this state, insurance contracts are governed by the rules of construction applicable to other contracts, and words in the policy must be given their usual and common signification and customary meaning. Construction of a contract is a question of law for the court. [But] [w]here any matter of fact is involved, a jury should find the fact.

“When the language of an insurance policy defining the extent of the insurer’s liability is unambiguous and capable of but one reasonable construction, the court must expound the contract as made by the parties.” “Ambiguity in a policy is duplicity, indistinctness, an uncertainty of meaning or expression.” The applicable portion of the policy in this case is not ambiguous.

The applicable portion of the policy states that “Loss means direct and accidental damage to the operational safety, function, or appearance of, or theft of, your covered auto...The policy contains no exclusion for loss due to conversion.

Automobile theft insurance is universally viewed as furnishing protection only against losses arising from criminal takings of the insured vehicle. Consequently, it is held that there can be no recovery under such a policy for a loss asserted to amount to a theft in the absence of proof of the existence of a felonious intent on the part of the taker.

“A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” “We have held that the phrase ‘regardless of the manner in which the property is taken or appropriated,’... ‘renders the section sufficiently broad to encompass thefts or larcenies perpetrated by deception . . . and theft by conversion. . . .’ ”

OCGA § 16-8-4 (a) pertinently provides, “A person commits the offense of theft by conversion when, having lawfully obtained . . . property of another... under an agreement... to make a... specified disposition of such property, he knowingly converts the . . . property to his own use in violation of the agreement. . . .” But one who takes under a fair or honest claim of right does not commit larceny or theft. Notwithstanding that OCGA § 16-8-4 is not intended to punish a simple breach of contract, the presence of fraudulent intent distinguishes theft by conversion from breach of contract.

Here, there is evidence from which a jury could find the fraudulent intent required to commit theft by conversion. Jordan’s brother allegedly told the buyer’s dealer that Byrd had consented to the sale of the vehicle, but the record shows that Byrd had never agreed to sell the vehicle, and he agreed on a sale price only after the full sale price had been paid (unbeknownst to Byrd) and possession of the vehicle had been transferred to the buyer’s dealer. Also, Jordan allegedly told Byrd he would pay him for the vehicle within 30 days but never did pay, although according to the dealer she had paid Jordan’s brother $225,000 for the vehicle. Further, there was evidence that by the end of June, neither Jordan nor his brother could be located, and the dealership had closed.

Decided June 26, 2012

Reconsideration denied July 31, 2012

Cochran & Edwards, R. Randy Edwards, Paul A. Piland, for appellant.

Carlock, Copeland & Stair, Wade K. Copeland, for appellee.

Pretermitting the issue of ratification, given the policy’s coverage of loss due to theft, the dispositive issue in this case is the absence in the policy of any exclusion for loss due to theft by conversion. There was evidence that by the time Byrd agreed to the sale price and canceled the insurance policy, either Jordan or his brother had already transferred possession of the vehicle to the dealer, Jordan had already allegedly misrepresented to Byrd that the purchase price of the vehicle had not been paid in full, and Jordan’s brother had already allegedly misrepresented to the dealer that Byrd had consented to the sale of the vehicle. If a jury determines that Jordan or his brother had fraudulent intent, then the loss is covered under the insurance policy as a theft.

There being a genuine issue of material fact, the trial court erred in granting summary judgment to USAA.

Judgment reversed.

Dillard, J., concurs. Ellington, C. J., concurs in judgment only.

        DuPree v. South Atlantic Conference of Seventh-Day Adventists, 299 Ga. App. 352, 353 (683 SE2d 1) (2009) (footnotes omitted).

       The trial court’s order states that Jordan made a partial payment of $5,100 to Byrd, but the evidence shows that this money was wired to the bank, and apparently represented one of the monthly car loan payments.

       See Brock v. Yale Mtg. Corp., 287 Ga. 849, 855 (3) (700 SE2d 583) (2010) (ratification occurs if a principal, with full knowledge of all the material facts, accepts the benefits of an unauthorized act, or retains such benefits after discovering the material facts).

        Cuyler v. Allstate Ins. Co., 284 Ga. App. 409, 412 (3) (643 SE2d 783) (2007) (citations, punctuation and footnote omitted).

        Collier v. State Farm &c. Ins. Co., 249 Ga. App. 865, 867-868 (3) (549 SE2d 810) (2001) (citation omitted).

        Canal Ins. Co. v. Wilkes Supply Co., 203 Ga. App. 35, 37 (2) (416 SE2d 105) (1992) (citation and punctuation omitted).

       Compare Collier, supra at 867 (3); Canal Ins. Co., supra (policy expressly provided that “theft” did not include loss in which insured voluntarily parted with the vehicle); Western Heritage Ins. Co. v. Newcastle Auto Sales, 249 Ga. App. 262, 263 (547 SE2d 792) (2001).

        Cincinnati Ins. Co. v. Tire Master of Thomaston, 183 Ga. App. 64, 65 (357 SE2d 812) (1987).

       OCGA § 16-8-2.

        Cole v. State, 186 Ga. App. 243, 243-244 (1) (366 SE2d 844) (1988) (citations and punctuation omitted).

        Cincinnati Ins. Co., supra (citations omitted); see OCGA § 16-8-10.

        Tukes v. State, 250 Ga. App. 117, 118 (1) (a) (550 SE2d 678) (2001).

       See Tukes, supra at 117-122 (1) (a), (b).

        DuPree, supra (summary judgment is proper when there is no genuine issue of material fact remaining for jury resolution and the movant is entitled to judgment as a matter of law); Cuyler, supra (construction of a contract is a question of law for the court; but where any matter of fact is involved, a jury should find the fact); Takes, supra; see generally Romano v. State, 233 Ga. App. 149, 152 (2) (503 SE2d 380) (1998) (criminal intent to deprive owner of his property was a question for the jury where the jury could infer such intent based on the evidence).


source: Caselaw Access Project

author: Doyle, Presiding Judge.

license: Public Domain

text:
    A12A0080.
    WRIGHT v. COFIELD et al.
    (730 SE2d 421)
   Doyle, Presiding Judge.

This appeal arises from a business dispute between Carl Wright and several Defendants, including Charles Cofield and Russell Neuman. The trial court granted summary judgment to the Defendants on the ground that the alleged oral contract was too vague to be enforceable. For the reasons that follow, we affirm in part and reverse in part.

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). Ade novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the record shows that Wright has worked in the color and fabric business since 1977, with experience in both sales and operations. Wright became acquainted with Neuman around 1987 at an industry conference. Over the next several years, Wright and Neuman discussed starting a color-concentrate business, although the parties were unsuccessful in securing funding and never consulted an accountant or an attorney. Meanwhile, in July 1995, Wright assumed a managerial position at American Extrusions (later known as Innovative Fibers), where he managed their color-compounding operations and eventually ascended to the rank of general manager, earning in excess of $160,000 per year.

In the spring of 2000, Neuman first informed Wright about Cofield’s possible interest in financing a start-up venture. In June of that year, while he was still employed by Innovative Fibers, Wright met Cofield for the first time and, over several conversations, discussed the possible formation of a company with Cofield and Neuman (“2000 Agreement”). At one of these meetings, Cofield proposed that Wright and Neuman run the new company.

Wright deposed that as an inducement to leave their employment, Cofield offered Wright and Neuman each 15 percent of the “net proceeds” of “whatever the value of the company was in a potential sale.” The 2000 agreement was not memorialized in writing. Wright agreed to a set salary per year, with the potential for bonuses, and he received health insurance but no other benefits.

As Wright understood it, he was a partner in the company along with Cofield and Neuman from the inception of the company. Nevertheless, Wright understood that Cofield was the legal owner of 100 percent of the company as a legal entity and had the power to determine Wright’s salary and employment status. Furthermore, Wright understood that he would receive no other financial incentive unless the company was sold.

Later that summer, as they made preparations for the new company, Wright, Cofield, and Neuman sought legal advice regarding the venture and arranged a meeting with Cofield’s attorneys. At this meeting, they were advised to form two companies — C/A Manufacturing and C/A Technologies (“the Company”) — in order to protect against potential legal claims from Neuman’s previous employer.

Wright gave notice to Innovative Fibers at the beginning of August and started working at C/A Manufacturing on September 1. Wright primarily handled the manufacturing aspects of the operation, while Neuman was responsible for sales. Early on, Neuman became the liaison between the Company and Cofield, and Wright primarily communicated with Neuman, who then relayed updates about the manufacturing side of the business to Cofield.

Beginning in 2000 and continuing until the eventual sale of the Company in 2005, Cofield received several purchase offers from prospective buyers, including Magenta Master Fibers and Americhem. During more than one of Cofield’s communications with the president of Americhem, he stated that he wanted a portion of any potential sale to go to Neuman and Wright, and several documents support this. Americhem’s president negotiated with the understanding that Wright and Neuman would receive a share of the proceeds from the sale. Similarly, during negotiations with Magenta, both Neuman and defendant Kevin Harris, the chief financial officer of the Company, operated under the assumption that 30 percent of the company was reserved for Neuman and Wright.

On February 11, 2002, the two C/A companies merged to create Old Cat, Inc., with Cofield retaining 100 percent of the Company’s stock. That spring, Wright requested an increase in salary and benefits, communicating this in writing to Neuman, who then passed the message on to Cofield. Cofield granted Wright’s request a few weeks later, but in doing so, he also decided that Wright would not receive “any kind of bonus” if the Company sold, but did not inform Wright directly of this decision.

On December 5, 2005, Americhem purchased Old Cat’s assets, including intellectual and physical property developed and contributed to by Wright. Portions of the $8.73 million proceeds from the sale were distributed to the various Defendants, including Neuman, but Wright received nothing. Wright had repeatedly asked Neuman about the payout of the proceeds, and Neuman told him he knew nothing about the division of proceeds, although Neuman received a promissory note for his share of the proceeds a week prior to the sale.

Wright brought suit in 2009, alleging claims of breach of contract, tortious interference with contractual relations, conversion, breach of fiduciary duty, aiding and abetting conversion, civil conspiracy, monies had and received, unjust enrichment, quantum meruit, attorney fees, and punitive damages. In March 2011, the trial court granted summary judgment to the Defendants, and Wright appeals.

1. As an initial matter, Wright “dropped” his claims of tortious interference with contractual relations, quantum meruit, and unjust enrichment, on which claims the trial court granted summary judgment to the Defendants. Although Wright did not actually dismiss these claims, he did not appeal the trial court’s summary judgment grant as to these counts, and therefore, we affirm the grant of summary judgment to the Defendants as to these claims.

2. Wright contends that the trial court erred by finding that the oral contract promising him 15 percent of the net proceeds of the sale of the business was unenforceable as a matter of law. We agree and reverse.

Although generally contract disputes may be well suited for summary judgment adjudication because construction of contracts is ordinarily a matter of law for the court, in this instance the first significant issue is not the contract’s construction, but whether the contract existed at all as a matter of fact. The construction of a contract is a question of law for the court. Where any matter of fact is involved, the jury should find the fact. In determining whether there was a mutual assent, courts apply an objective theory of intent whereby one party’s intention is deemed to be that meaning a reasonable man in the position of the other contracting party would ascribe to the first party’s manifestations of assent, or that meaning which the other contracting party knew the first party ascribed to his manifestations of assent. Further, in cases such as this one, the circumstances surrounding the making of the contract, such as correspondence and discussions, are relevant in deciding if there was a mutual assent to an agreement. Where such extrinsic evidence exists and is disputed, the question of whether a party has assented to the contract is generally a matter for the jury.

Thereafter, “the next question is whether they reached a verbal agreement as to all essential terms.”

Here, Wright’s testimony and the documents regarding the unconsummated sales of the company between 2000 and 2005 raise a material issue of fact as to whether he was entitled to 15 percent of the net proceeds of the sale of Old Cat, Inc. The trial court erred by finding that “success” of the company was a condition precedent that barred Wright’s claim as a matter of law or that the failure of the parties to define the term “success” rendered the agreement too vague to be an enforceable oral agreement. Wright testified that this meant simply that if the company was not successful a sale would not occur. That testimony coupled with the evidence that Neuman received his portion of the net proceeds of the sale, and the documents discussing Wright’s raise and its effect on whether he would receive a portion of the proceeds of the sale, could support a finding that the parties mutually assented to the alleged contract. Therefore, the trial court erred by ruling that the alleged contract was unenforceable as a matter of law.

3. The Defendants argue that we should affirm the trial court on the basis of “right for any reason” because Cofield could change the terms of Wright’s at-will employment at any time. We disagree. Cofield could only make “prospective changes” in Wright’s terms of employment after providing notice, about which a question of fact exists here.

Decided July 11, 2012

Reconsideration denied July 31, 2012

Locke Lord, Adamson B. Starr, John H. Williamson, for appellant.

Coppedge & Evans, Warren N. Coppedge, Jr., Joseph B. Evans, Stephen Michmerhuizen, Carlock, Copeland & Stair, Johannes S. Kingma, Peter F. Boyce, Catherine M. Packwood, William W. Keith III, for appellees.

4. Finally, based on our holding in Division 1, we reverse the trial court’s grant of summary judgment to the Defendants on Wright’s claims for conversion, civil conspiracy, money had and received, breach of fiduciary duty, attorney fees, and punitive damages because it erroneously determined that no underlying enforceable agreement existed.

Judgment affirmed in part and reversed in part.

Andrews and Boggs, JJ., concur.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       (Citations and punctuation omitted.) McKenna v. Capital Resource Partners, IV, 286 Ga. App. 828, 832 (1) (650 SE2d 580) (2007).

       Id. at 833 (2). See also OCGA §§ 13-3-1; 13-3-2.

       See Dye v. Mechanical Enterprises, 308 Ga. App. 311, 314-315 (708 SE2d 24) (2011) (jury question as to issue of commission computation, both of which were sufficiently definite to survive summary judgment). See also Cox v. Erwin, 246 Ga. App. 439, 441 (2) (541 SE2d 69) (2000) (60 percent of net profit sufficiently definite to survive summary judgment); Harrell v. Deariso, 82 Ga. App. 774, 778 (62 SE2d 434) (1950) (difference between gross sales price and $11,000 was sufficiently definite); Cary v. Neel, 54 Ga. App. 860, 861 (189 SE 575) (1936) (five cents per ton of gravel sold not indefinite); Phillips & Co. v. Hudson, 9 Ga. App. 779, 780-781 (2) (72 SE 178) (1911) (promise to pay as a bonus a certain percentage of a company’s net earnings was definite and enforceable). Compare with Christensen v. Roberds of Atlanta, 189 Ga. App. 289, 291-292 (2) (375 SE2d 267) (1988) (promise to pay a bonus of $7,000 to $8,000 per year not enforceable).

       See Transkey, Inc. v. Adkinson, 225 Ga. App. 457, 460-461 (2) (484 SE2d 30) (1997) (question of fact as to whether a condition precedent existed in oral employment contract).

       See Cox, 246 Ga. App. at 440 (2).


author: Mikell, Presiding Judge.

text:
    A12A0101.
    THE PARK AVENUE BANK v. STEAMBOAT CITY DEVELOPMENT COMPANY, L.P. et al.
    (728 SE2d 925)
   Mikell, Presiding Judge.

Pursuant to our grant of its application for interlocutory appeal, The Park Avenue Bank (the Bank) appeals from the trial court’s order transferring venue of its claim for breach of a loan agreement and promissory note from Lowndes County to Glynn County, as requested by the defendants, Steamboat City Development Company, L.P. (Steamboat), its general partner W. G. Pitts Wildlife Development Company, LLC, and eight individual guarantors.

The following facts are not disputed. On October 1, 2007, Steamboat, the Bank, and the eight guarantors entered into a Loan Agreement whereby the Bank agreed to loan Steamboat $6,570,000. That same day, Steamboat, through its general partner, executed a Promissory Note for the loan amount, and the individual guarantors each executed their personal guaranties. The definitions section of the Loan Agreement defines “Loan Documents,” in pertinent part, as the Loan Agreement, the Note, the Security Deed, the Guaranties, “and any and all other documents now or hereafter executed by Borrower, Guarantors, or any other Person which evidences or secures the Loan.” (Emphasis supplied.) Attached as Exhibit A to the Loan Agreement are “Document Protocols” applicable to the Loan Documents. Section 11 of the Protocols states:

Jurisdiction, Court Proceedings. Except as maybe required under the foreclosure provision contained within the Security Deed, each of Lender, Borrower, and Guarantor, to the fullest extent permitted by law, hereby knowingly, intentionally, and voluntarily, with and upon the advice of competent counsel, (i) submits to personal, nonexclusive jurisdiction in the State of Georgia with respect to any suit, action, or proceeding by any person arising from, relating to, or in connection with such Loan Document or the Loan, (ii) agrees that any such suit, action, or proceeding may be brought in any state or federal court of competent jurisdiction sitting in Lowndes County, Georgia, and (iii) submits to the jurisdiction of such courts. Each of Borrower and Guarantor, to the fullest extent permitted by law, hereby knowingly, intentionally, and voluntarily, with and upon the advice of competent counsel, further agrees that it will not bring any action, suit, or proceeding in any forum other than Lowndes County, Georgia (but nothing herein shall affect the right of Lender to bring any action, suit, or proceeding in any other forum), and irrevocably agrees not to assert any objection which it may ever have to the laying of venue of any such suit, action, or proceeding in any federal or state court located in Georgia and any claim that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum.

(Emphasis supplied.)

On October 1, 2008, an Amended and Restated Promissory Note was executed by Steamboat and the Bank, and Reaffirmations of Guaranties were signed by all of the guarantors. Subsection 10 (c) of the Amended and Restated Promissory Note provides:

Any suit, action or proceeding against Borrower hereof may, at the sole option of Lender, be brought in any State of [sic] Federal court of competent jurisdiction, for the enforcement of this Amended and Restated Promissory Note or any remedy hereunder, and Borrower hereby consents to the nonexclusive jurisdiction of such court and waive [sic] any right or privilege to require that any such action be brought in any other jurisdiction or venue.

On May 12, 2010, the Bank filed suit in Lowndes County Superior Court against Steamboat, its general partner, and the guarantors, alleging breach of the Loan Agreement, Security Agreement, and Promissory Note by Steamboat and breach of the personal guaranties by the eight guarantors. In June, answers were filed by all eight guarantors and the general partner, raising the defense of improper venue.

On October 6, 2010, a Joint Motion to Transfer Venue was filed by all of the defendants, contending that the forum selection clause in the Loan Agreement was unconstitutional, contrary to public policy, and unenforceable and, in the alternative, that the matter should be transferred to Glynn County pursuant to the doctrine of forum non conveniens.

The Lowndes County trial court then issued its order transferring the matter to Glynn County based upon the forum selection clause in the Amended and Restated Promissory Note, set out above, and this appeal ensued.

Because our ruling turns on a question of contract interpretation, i.e., the enforceability of the forum selection clause and whether that clause precluded the appellees from seeking dismissal under the forum non conveniens statute, we apply a de novo standard of review.

First, we consider the evolution in Georgia of the doctrine of forum non conveniens. In 2001, the Supreme Court of Georgia, “[r]elying on our inherent judicial power,... adopt[ed] the doctrine of forum non conveniens for use in lawsuits brought in our state courts by nonresident aliens who suffer injuries outside this country.” Then, in 2005, as part of tort reform, the legislature adopted OCGA § 9-10-31.1, which states, in pertinent part:

(a) [i]f a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a forum outside this state or in a different county of proper venue within this state, the court shall decline to adjudicate the matter under the doctrine of forum non conveniens. As to a claim or action that would be more properly heard in a forum outside this state, the court shall dismiss the claim or action. As to a claim or action that would be more properly heard in a different county of proper venue within this state, the venue shall be transferred to the appropriate county.

(Emphasis supplied.)

The statute then sets out seven factors to be considered by the trial court in considering whether to grant a motion to dismiss or to transfer venue. Failure to address each factor is error.

1. In its second enumeration of error, the Bank argues that venue is proper in Lowndes County pursuant to the forum consent provision of the Loan Agreement.

(a) First, we find error in the trial court’s sole reliance on the venue clause in the Amended and Restated Promissory Note in making its determination. As evidenced by the definition section of the Loan Agreement, set out above, the Amended and Restated Promissory Note is a “loan document” subject to Section 11 of the Document Protocols, “Jurisdiction, Court Proceedings.” Further, we do not find that the venue clause in the Amended and Restated Promissory Note is inconsistent with that in the Document Protocols.

One of the most well-established rules of contract interpretation is that the contract must be construed as a whole, “and the whole contract should be looked to in arriving at the construction of any part.” The trial court’s focus solely on the Amended and Restated Promissory Note and its venue clause was in contradiction of this rule.

Looking at all the loan documents, it is apparent that they are all subject to Section 11 of the Document Protocols and that Lowndes County was the agreed upon venue for any suit other than a foreclosure proceeding. If anything, the Amended and Restated Promissory Note broadened the choices of the Lender to any state or federal “court of competent jurisdiction[,]” of which Lowndes County Superior Court is one.

(b) Since at least 1993, this court has adopted the United States Supreme Court’s analysis in finding that forum selection clauses

are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be “unreasonable” under the circumstances.... This approach is substantially that followed in other common-law countries including England. It is the view advanced by noted scholars and that adopted by the Restatement of the Conflict of Laws. . . .

The record before us does not contain any transcript of the hearing held on the joint motion to transfer. Therefore, no showing is contained in the record here that the forum selection clause in the Document Protocols was unenforceable. Under the standard set out above, it was error for the trial court to rule it unenforceable. Similarly, it was error for the trial court to conduct

its forum non conveniens analysis in response to an action by the parties that they were prohibited by contract from taking. Where parties are free to draft their own contracts and set agreed-upon terms, courts are not at liberty to revise those terms. Accordingly, the trial court erred when it granted relief to [the defendants] that by the plain and unambiguous terms of their contracts they were not allowed to pursue.

The appellees rely on several decisions by three-judge panels of this court. However, Harry S. Peterson Co. v. Nat. Union Fire Ins. Co. is a decision by nine judges, that being the entire court at the time. By our rules, it controls the outcome of the case at bar.

Decided July 13, 2012

Reconsideration denied July 31, 2012

Coleman Talley, Mark A. Gilbert, for appellant.

Durham, McHugh & Duncan, James B. Durham, Ratcliffe & Smith, Thomas J. Ratcliffe, Jr., Hall, Booth, Smith & Slover, Norman D. Lovein, James T. Bennett, John R. Ferrelle, for appellees.

2. Georgia’s familiarity with forum non conveniens is fairly recent, dating only from the judicial importation of the doctrine in AT&T Corp. v. Sigala. The federal courts have had the doctrine for decades longer than our Peach State experience and their precedents are instructive. In the absence of a forum selection clause, the federal courts are unanimous in giving great deference to the plaintiff’s choices of forum. A defendant seeking to change venue by reason of forum non conveniens has a heavy burden. When the parties have by contract prior to litigation mutually agreed on a forum for litigation, that selection is given effect absent proof of fraud, etc. Our precedents by contrast show that the trial courts have not given appropriate deference to the plaintiff’s choice of forum. We do not revisit those cases today because we lack the records and the assistance of counsel.

3. Because of our holding above, the error asserted in Enumeration 1 is moot.

Judgment reversed.

Miller and Blackwell, JJ., concur.

       William Griffin Pitts, Jasper Bernard Barnard, Carlton A. DeVooght, John McLeod Powers, Bobby Jack Robison, John Robert Wright, Bruce Gentry Tripp, and Albert F. Shelander. Powers, Pitts, and Robison were residents of Florida, and the remaining guarantors were residents of Glynn County, Georgia.

       See Murphree v. Yancey Bros. Co., 311 Ga. App. 744, 747 (716 SE2d 824) (2011) (contract construction is a question of law for the court that is subject to de novo review).

        AT&T Corp. v. Sigala, 274 Ga. 137, 139 (549 SE2d 373) (2001) (recognizing that “[t]he common-law doctrine of forum non conveniens is an equitable principle by which ‘a court having jurisdiction may decline to exercise it on considerations of convenience, efficiency, and justice’ ”) Id. at 138 (citation and punctuation omitted).

         See also Ga. Uniform Superior Court Rule 19.1, dealing with transfer/ehange of venue and imposing a $50 transfer fee.

        Hewett v. Raytheon Aircraft Co., 273 Ga. App. 242, 248-249 (2) (614 SE2d 875) (2005) (holding that before dismissing or transferring a case on the ground of forum non conveniens, a trial court must make specific findings either in writing or orally on the record demonstrating that the court has considered all seven of these factors). We note that the order appealed does not do so nor was the hearing transcribed.

       OCGA § 13-2-2 (4). See Fix v. McAllister, 273 Ga. App. 463, 467 (1) (615 SE2d 547) (2005).

       Lowndes County Superior Court has subject matter jurisdiction over this dispute. Ga. Const., Art. VI, Sec. IV, Par. I. While subject matter jurisdiction cannot be waived, personal jurisdiction can be. OCGA § 9-11-12 (h) (1).

        The Bremen v. Zapata Off-Shore Co., 407 U. S. 1 (92 SC 1907, 32 LE2d 513) (1972).

       Id. at 10-11, quoted in Harry S. Peterson Co. v. Nat. Union Fire Ins. Co., 209 Ga. App. 585, 589-590 (3) (b) (434 SE2d 778) (1993) (whole court). See also, e.g., The Houseboat Store v. Chris-Craft Corp., 302 Ga. App. 795, 797 (1) (b) (692 SE2d 61) (2010); SR Business Svcs. v. Bryant, 267 Ga. App. 591, 592 (600 SE2d 610) (2004); Regency Mall Assocs. v. G. W.’s Restaurant, 213 Ga. App. 225 (444 SE2d 572) (1994).

       Id.

       (Punctuation and footnotes omitted.) Intl. Greetings USA v. Cammack, 306 Ga. App. 786, 789 (703 SE2d 386) (2010).

       Supra.

       Supra.

        Gulf Oil Corp. v. Gilbert, 330 U. S. 501, 508 (II) (67 SC 839, 91 LE2d 1055) (1947); Agyenkwa v. American Motors Corp., 622 FSupp. 242, 244 (E.D. N.Y. 1985); Grimandi v. Beech Aircraft Corp., 512 FSupp. 764, 777 (IV) (D.C. Kan. 1981).

        Gulf Oil Corp., supra; Agyenkwa, supra; Grimandi, supra. And the federal courts seem to measure inconvenience in hundreds if not thousands of miles. By contrast, Georgia judges have redressed alleged inconveniences as minor as 20.4 miles (Lamb v. Javed, 303 Ga. App. 278 (692 SE2d 861) (2010)) or 122 miles in the case at bar.

       E.g. The Bremen, supra.

       E.g. Lamb, supra.


text:
    A12A0199.
    MORRIS v. TURNKEY MEDICAL ENGINEERING, INC.
    (729 SE2d 665)
   Phipps, Presiding Judge.

Following a trial, the jury rendered a verdict in favor of Eric Morris on his claims for negligence against Turnkey Medical Engineering, Inc., and awarded Morris compensatory damages in the amount of $50,000, for injuries he sustained when medical equipment serviced by Turnkey exploded. The trial court entered judgment on the verdict. Morris moved for a new trial, which the trial court denied.

On appeal, Morris contends that the trial court: (1) improperly excluded him from the courtroom during the trial; (2) improperly “appointed” a defense-biased physician to examine him and excluded Morris’s counsel from being present during the medical examination; (3) improperly refused to allow certain exhibits that were admitted into evidence to go out with the jury during deliberations; and (4) improperly denied his motion for a new trial because the amount of the verdict was inadequate and contrary to the evidence. For the reasons that follow, we reverse and remand this case to the trial court for a new trial.

Viewed in the light most favorable to the jury’s verdict, the record shows that on December 7, 2006, Morris was employed on a rigging crew and was assisting other workers in moving an “MRI” machine to a different location. During the move, the machine exploded, and Morris, who was found lying on the floor not far from the machine, did not immediately respond when his supervisor called his name. Just days prior to the explosion, Turnkey had serviced the machine in preparation for it to be decommissioned. The day of the explosion (after the explosion), Morris was treated at an emergency room where he complained of pain in his right ear and wrist. Morris reported that on a pain scale of “zero to ten” his pain level was a “one.”

The emergency room physician, who had been trained in treating traumatic brain injuries, testified that Morris’s “appearance was well, psychiatric, he was appropriate; skin, I commented multiple minimal abrasions; his eyes were normal; ear, nose, and throat exam was normal. I also documented a pertinent negative in the fact of his tympanic membranes, his ear drums, were normal.” A neurological exam was conducted and the results were “completely normal.” The following day, Morris was seen at an urgent care facility. The records from that facility showed that Morris was treated there for only an injury to his wrist and that he did not complain of any head injury; Morris denies that he failed to complain of a head injury. In July 2007, Morris was terminated from his place of employment because he refused to take a drug test.

In November 2007, Morris was examined by a neurologist who opined that, to a “reasonable degree of medical certainty,” as a result of the machine’s explosion, Morris suffered

a closed-head injury of at least moderate severity. That he had been knocked out. That he was having post-traumatic migraine headaches. That he was having multiple problems with higher cortical thinking and that he might even be having post-traumatic stress disorder with depression. . . .

The neurologist testified that Morris did not state that he had hit his head during the explosion. He concluded, among other things, however, that Morris had suffered a concussion, or, in other words, “head-trauma” and was “not thinking right.” He testified that if post-concussive symptoms continued, Morris’s injuries could be permanent.

Morris was examined by several other physicians for the brain injury he claimed he had sustained from the explosion. The physicians’ opinions varied as to whether Morris had sustained a brain injury.

1. Morris contends that the trial court violated his due process rights by “excluding and restricting [his] presence at trial without an evidentiary hearing, findings of fact, or bifurcation of the damages phase.” We agree that the trial court’s exclusion or restriction of Morris’s presence in the courtroom during portions of the trial was erroneous and is grounds for a new trial.

The trial transcript shows the following exchange occurred on what appeared to be the second day of trial (the first day being jury selection):

[DEFENDANT’S ATTORNEY]: Judge, this is a little unusual but it is very obvious that Mr. Morris appears to be in a lot of distress here. And, you know, if he is feeling so bad and he is so sick and he has got to keep his head down throughout the whole day I wonder maybe if he needs to leave and go home and get better. But if he is going to be in court, then I just question if that is the appropriate place.
[PLAINTIFF’S ATTORNEY]: Your Honor, he just threw up in the hall.
THE COURT: I know and I feel awful about it.
[PLAINTIFF’S ATTORNEY]: This is one of his symptoms, Your Honor. They say there is nothing wrong with him. He is entitled to be here. The jury is entitled to see —
THE COURT: Well, he is entitled to be here but if he is going to be here he is going to be sitting up. If he is in the courtroom, he is going to be sitting up. That is the way it is going to be.
[PLAINTIFF’S ATTORNEY]: And why is that? He is not entitled to be here?
THE COURT: He is entitled to be here, yes. We are all entitled to be here. But this jury is going to be asked to give him millions of dollars and he is going to sit up and —
[PLAINTIFF’S ATTORNEY]: They are watching every single minute.
THE COURT: Exactly. Which is —
[PLAINTIFF’S ATTORNEY]: If he is sitting up, they may not even notice it. They may not even be able to tell. They are looking at him all the time.
THE COURT: Well, that is too bad. We all may be in pain and they may not be able to tell. But him having his head on the table while the jury is decide is not going to cut it. So, that is just the way it is. If he can be in here and participate, that’s fine. If he needs to come and go, fine. But we are not going to engender sympathy in the jury. The jury is going to decide based on the evidence. And, yes, they are going to watch him which is all the more reason that he needs to sit up.
[PLAINTIFF’S ATTORNEY]: Well, Your Honor, if he can’t physically sit up because he have such headaches and nausea, what is he supposed to do?
THE COURT: I guess rest and come in. Because we are not going to go through a whole day where he lies his head on the table. He was here yesterday and he sat up.
[PLAINTIFF’S ATTORNEY]: And when he had terrible headaches yesterday, he had to put his head down.
THE COURT: That was fine. That was partially through the day. We are not going to start off at 9:00 a.m.
[PLAINTIFF’S ATTORNEY]: I think he has a right to be here.
THE COURT: He does have a right to be here. But we also have a right to behave a certain way in the courtroom. So when he feels better, he can come back in. So go talk to him.
If he feels like he can sit up, that’s fine. I am not saying he can never put his head down but we are not going through the whole day of trial with him laying his head on the table. We are not doing that. So go talk to him and come right back in. (whereupon [Plaintiff’s attorney] exited the courtroom to speak to the plaintiff, Eric Morris)
[PLAINTIFF’S ATTORNEY]: Your Honor, Eric is going to go home and try to come back this afternoon.
THE COURT: Okay.
[PLAINTIFF’S ATTORNEY]: We object to him being excluded from —
THE COURT: I am not excluding him, [Plaintiff’s attorney]. Don’t even go there.
[PLAINTIFF’S ATTORNEY]: We object to the restrictions placed on his appearance.
THE COURT: Okay. Well, I am sorry you do. That’s fine. Bring the jury in.

In Kesterson v. Jarrett the Supreme Court of Georgia recently held:

a party may not be excluded from her own trial simply because her physical and mental condition may evoke sympathy. . . . Instead, trial courts can and should address the risk of undue sympathy using jury instructions and other common and time-tested means of ensuring that both parties receive a fair trial, without infringing on the parties’ right to be present.

“[0]ther commonplace and time-tested means” may include changing venue, questioning prospective jurors in voir dire and excusing prospective jurors for cause or peremptorily, excluding evidence that is substantially more prejudicial in playing to sympathy than probative of a relevant issue, restricting opening statements and closing arguments, and reviewing the jury’s verdict in the trial court and on appeal to ensure that it was not the product of bias rather than fact and law.

“When the newly promulgated law is a judicial decision, then retroactive application is favored . . . unless it comes within the limited exception to the general rule of retroactive application.” In determining whether case law should be applied prospectively or retroactively, a court should make a tripartite examination:

(1) Consider whether the decision to be applied nonretroactively established a new principle of law, either by overruling past precedent on which litigants relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. (2) Balance . . . the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation would further or retard its operation. (3) Weigh the inequity imposed by retroactive application, for, if a decision could produce substantial inequitable results if applied retroactively, there is ample basis for avoiding the injustice or hardship by a holding of nonretroactivity.

Examining these guidelines, it is clear that the recent opinion of the Supreme Court in Kesterson should be applied retroactively to this case. Considering the first factor, in its decision, the Supreme Court did not overrule past precedent upon which the parties, and particularly Turnkey, relied; and although the decision may not have been clearly foreshadowed, the Court’s decision followed the trend of safeguarding a civil plaintiff’s right to be present in the courtroom at trial. Considering the second factor, before the Supreme Court’s opinion, there were no published cases in which Georgia courts had explicitly set forth alternative remedies a trial court must consider before barring from the courtroom a party to a case on trial; thus, we find that the purpose and effect of the Supreme Court’s holding will be best served by retroactive application of the holding and would further its operation.

Concerning the third factor, there is no valid vested interest in the prior absence of a clear procedure to safeguard a litigant’s right to be present in the courtroom during trial. In sum, all three factors favor retroactive application of the Supreme Court’s recent opinion.

Thus, applying the Supreme Court’s holding in Kesterson, the record in this case fails to show that Turnkey sought any of the alternative remedies discussed above before requesting Morris’s exclusion, or that the trial court considered those approaches in lieu of barring Morris from the courtroom if he was going to lay his head on the table. The court’s exclusion of Morris from the courtroom was error, and Morris is entitled to a new trial. Accordingly, we reverse the judgment and remand this case to the trial court for a new trial.

2. Morris contends that the trial court’s order requiring him to submit to a medical examination pursuant to OCGA § 9-11-35 was improper because the physician had been retained by the defense, was biased toward the defense, and was not “independent.” Morris further contends that the trial court erred in excluding his counsel from being present when the physician examined him. Because this issue may arise on re-trial, we will address it.

(a) Concerning the court’s order requiring Morris to submit to a medical examination, “a plaintiff in a negligence action who asserts mental or physical injury, places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury.” In that regard, OCGA § 9-11-35 (a) provides:

When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical examination by a physician or to submit to a mental examination by a physician or a licensed psychologist or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

“The grant or denial of a motion requesting such an examination rests in the sound discretion of the trial court.” “This court has repeatedly held that it will not reverse a trial court’s decision on discovery matters absent a clear abuse of discretion.” An order for the physical or mental examination of an individual pursuant to OCGA § 9-11-35 is a “discovery matter.”

Contrary to Morris’s contention, the statute does not require that the examining physician be one who has not been retained by the defendant or is otherwise not biased toward the defense. And “[although an expert may be paid, those circumstances may be explored on the stand, and any question of bias is for the jury.” We fail to see any abuse of discretion in the trial court’s order requiring Morris to submit to a medical examination pursuant to OCGA § 9-11-35.

(b) Concerning Morris’s contention that the trial court erred in excluding his counsel from being present when the physician examined him pursuant to a court order, this issue is waived. In his brief opposing Turnkey’s motion for an examination pursuant to OCGA § 9-11-35, Morris objected solely on the ground that Turnkey’s desired physician was biased and not “independent.”

3. Concerning Morris’s remaining contentions, given our conclusion in Division l, we need not address them.

Judgment reversed and case remanded.

Ellington, C. J., and Dillard, J., concur.

Decided July 13, 2012

Reconsiderations denied July 31, 2012

Chilivis, Cochran, Larkins & Bever, David N. Schaeffer, for appellant.

Hawkins & Parnell, David D. Marshall, for appellee.

        Stubbs v. Harmon, 226 Ga. App. 631, 632 (1) (a) (487 SE2d 91) (1997) (in reviewing the denial of a motion for new trial based on the sufficiency of the evidence, an appeals court must view the evidence in the light most favorable to upholding the jury’s verdict).

        Kesterson v. Jarrett, 291 Ga. 380 (728 SE2d 557) (2012).

       Id. at 381.

       Id. at 387-389.

        Banks v. ICI Americas, 266 Ga. 607, 609 (3) (469 SE2d 171) (1996).

        Ellis v. State, 272 Ga. 763, 765 (1) (534 SE2d 414) (2000) (citation, punctuation and footnote omitted).

        Abu-Khdeir v. T. J. Maxx, 191 Ga. App. 523, 524 (382 SE2d 216) (1989).

       Id.; Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 712 (3) (300 SE2d 673) (1983).

        Abu-Khdeir v. T. J. Maxx, supra.

       Ga. Railroad & Banking Co. v. Tice, 124 Ga. 459, 465 (52 SE 916) (1905) (party to cause on trial had a right to remain in court during entire trial); St. Paul Fire &c. Co. v. Brunswick Grocery Co., 113 Ga. 786, 789 (39 SE 483) (1901) (party to the issue on trial had right to be present, and it was manifestly erroneous to exclude her from the courtroom); Walden v. MARTA, 161 Ga. App. 725, 726 (288 SE2d 671) (1982) (party to the issue on trial has aright to be present); Mays v. Tharpe & Brooks, 143 Ga. App. 815, 816 (240 SE2d 159) (1977) (a substantial right of a party to litigation is to be present at the trial and render assistance to his counsel as the developmentsunfold); Cox v. Yates, 96 Ga.App. 466 (3) (100 SE2d 649) (1957) (generally,parties to civil actions in this state have the right to be present at all stages of the trial); Boutelle v. White, 40 Ga. App. 415 (149 SE 805) (1929) (trial judge has no right to exclude from the courtroom, during the taking of testimony, a party to the case on trial); compare Willingham v. Willingham, 192 Ga. 405, 408 (2) (15 SE2d 514) (1941) (the right of a party to a civil action to remain in the courtroom during the entire trial is not absolute; trial judges may, in the exercise of their discretion, exclude parties from civil trials under certain circumstances).

       See Banks, supra at 609 (2).

       See generally Ellis, supra; Griffin v. Bankston, 302 Ga. App. 647, 651 (1) (a), n. 2 (691 SE2d 229) (2009).

       See Kesterson, supra at 389.

       Id. at 396.

       Id.

        Everett v. Goodloe, 268 Ga. App. 536, 546 (3) (602 SE2d 284) (2004) (punctuation and footnote omitted; emphasis supplied).

       Id. (footnote omitted).

        Roberts v. Forte Hotels, 227 Ga. App. 471, 473 (3) (489 SE2d 540) (1997) (citation and punctuation omitted).

       See Brake v. Mintz, 193 Ga. App. 662, 663-664 (388 SE2d 715) (1989).

       See Roberts, supra.

        Francis v. Francis, 279 Ga. 248, 249 (611 SE2d 45) (2005) (objecting on specific grounds at trial waives the grounds not asserted).

       Supra.


text:
    A12A0202.
    ZEAGLER v. NORFOLK SOUTHERN RAILWAY COMPANY.
    (730 SE2d 657)
   Mikell, Presiding Judge.

William Zeagler brought this action pursuant to the Federal Employers’ Liability Act (FELA) after he was injured in a grade-crossing collision, claiming, inter alia, that Norfolk Southern Railway Company was negligent in failing to provide him with safety training. After a hearing, the trial court granted Norfolk Southern’s motion for summary judgment and Zeagler appeals. For the reasons that follow, we reverse.

“Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. In reviewing the grant of a motion for summary judgment, we apply a de novo standard of review.”

Viewing the evidence and all reasonable conclusions and inferences draw from it in the light most favorable to Zeagler as the nonmoving party, the record shows that while working as a conductor on a Norfolk Southern train, Zeagler sustained serious injuries when a logging truck pulled onto the tracks in front of his train, causing a collision. The engineer shot the emergency brake, but could not avoid the collision. A Norfolk Southern “Personal Injury Report” filled out the day of the accident and signed by Zeagler says, “When our Locomotive hit the log truck, I fell back [illegible] engine floor on my back.” Zeagler deposed that he panicked and decided to jump off the locomotive, but before he could, the impact caused him to fall and trip over his brakeman, hitting his lower back on the brakeman’s suitcase and bouncing up and down on his tailbone and lower back several times before the train stopped.

Zeagler sued Norfolk Southern pursuant to FELA, claiming negligence and alleging, inter alia, that the company failed to provide him with a reasonably safe place to work in that it breached its duty by not training him in safety measures in the event of a grade-crossing collision. He claims that this failure to train caused his injuries. Based on expert testimony, he also argued that his risk of injury would have been reduced if he had been trained to get below window level in a seated and/or braced position, and had been instructed not to attempt to escape an impending collision by jumping from the train. Norfolk Southern moved for summary judgment, alleging that it had no duty under federal law to provide such training, and that there was no causal connection between the lack of training and Zeagler’s injuries. The trial court agreed, and granted the summary judgment motion from which this appeal springs.

FELA provides a federal tort remedy for railroad employees injured on the job, offering protection for those working within the scope of their employment whose duties affect or further the interstate transportation business of a railroad engaged in interstate commerce. To prevail on an FELA claim, an employee “must prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation.” Whether Zeagler’s claim should be heard by a jury is the issue before us.

1. Zeagler argues that the trial court erred in finding that Norfolk Southern had no duty to train him in safety measures applicable to grade-crossing collisions. Specifically, he contends that the trial court improperly conflated the legal standards for duty and causation in finding that he was “unable to demonstrate that this training would have actually helped” protect him from injury. To be sure, the issue of duty should be addressed before considering whether the duty was breached and whether that breach was the cause, or at least a contributing cause of Zeagler’s injuries. Each of these terms is discussed with the understanding that their usefulness in ascertaining coverage under FELA may import a slightly different meaning, or at least a different emphasis, than their traditional meaning in Georgia tort law.

Analyzing a FELA claim to decide to whether a railroad owed a duty to the claimant employee to protect him or her from the particular event sued for requires consideration of foreseeability. The unfortunate mishap must have been reasonably foreseeable.

It is difficult for a railroad to argue that a particular mishap is unforeseeable when exactly the same event, e.g., bodily injuries to train crews involved in a grade-crossing collision with a motor vehicle, has occurred innumerable times before. And a railroad is required to take precautions commensurate with the danger inherent in a situation and proportionate to consequences which may reasonably be anticipated from neglect. Under FELA, an employer’s conduct is measured by the degree of care that persons of ordinary, reasonable prudence would use in similar circumstances.

Viewed appropriately, the record clearly shows that Norfolk Southern could have foreseen grade-crossing collisions and the attendant hazards resulting from a failure to train its employees. William E. Honeycutt, a retired assistant vice-president of operating rules for Norfolk Southern testifying for the railroad, deposed that the company experienced about 2,500 grade-crossing collisions between 2003 and 2007, or about one per day, and that Norfolk Southern knew of both the frequency of collisions and that employees got injured in the collisions. He also deposed that Norfolk Southern knew that crews sometimes attempted to flee the locomotive cab even though it is usually safer to remain inside. Honeycutt deposed that Norfolk Southern provides “no specific rules or instructions pertaining to crossing accidents.”

In the case at bar, it is beyond argument that Norfolk Southern had a duty to protect Zeagler from crossing collisions, if such be possible, or at least take steps to mitigate, if possible, the physical injuries which may accompany such mishaps. It is a railroad; he was an employee. He was in service and on the job. Crossing collisions occur frequently, perhaps as many as one per day on the entire Norfolk Southern system. And the injuries to railroad employees can range from the trivial to the fatal.

One of Zeagler’s experts, John Ambrose, a retired Norfolk Southern trainmaster who had investigated about 75 grade-crossing collisions and had been in approximately 15 such collisions, testified that because of the information the railroad collects in injury reports after grade-crossing collisions, it could “devise a training program that its employees could follow when a crossing collision is imminent that would greatly reduce the likelihood and severity of injuries.” He also testified that

[i]n virtually every crossing collision, it is much safer to stay in the interior of the locomotive rather than attempt to leap from it. Despite this fact, Norfolk Southern does not tell its employees not to leap from locomotives when a crossing collision is imminent. As a result of this failure to give this specific instruction, and the general failure to train its employees on how to protect themselves in crossing collisions, [Zeagler] was attempting to flee the interior of the locomotive in a panicked state when he sustained his injuries____Norfolk Southern could have devised a procedure for [Zeagler] to follow, such as a standard brace position for him to assume, that would have prevented him from being in a position where he would strike his lower back on the brakeman’s grip, and fall over and bounce up and down on his tailbone.

Another expert, Dr. Andrew J. Hurayt, opined that as Zeagler’s treating psychiatrist, he believed that Norfolk Southern’s lack of training contributed to Zeagler’s post-traumatic stress disorder following the collision. Finally, expert witness Dr. Marc B. Wilson, an ergonomist, opined that training in emergency procedures was crucial to allow employees to perform their jobs safely and to reduce panic reactions and therefore the likelihood of physical injury. Had Zeagler been properly trained, Wilson testified, he likely would not have attempted to flee the cab and instead would have assumed a safe, braced position, reducing his risk of falling on his back. Zeagler’s affidavit, however, says that he

was not trained by anyone, in any way, on how to protect myself in the event of a crossing collision. Norfolk Southern has never told me not to attempt to jump off a locomotive in the event of an impending crossing collision. Norfolk Southern never trained me to assume a position of safety or how to avoid injury in any fashion.

Norfolk Southern argues that it had no duty to train its employees on where to go and what to do in the cab of a locomotive preceding a grade-crossing collision, as such incidents contain too many variables to make such training effective. The railroad’s expert, Honeycutt, stated in his affidavit that “it is not feasible to attempt to develop a rule or instruction for the proper way for a crew member to respond ... because the appropriate action to take depends upon the circumstances which can vary from one accident to another.” However, Zeagler’s expert, Wilson, opined that

[t]he argument that there may be a small percentage of incidents in which a standardized training program would not be appropriate can be likened to the argument that there are a small percentage of cases in which seatbelts do not promote safety in automobile collisions. ... In fact, emergency procedures cannot be designed to cover every single circumstance but are, instead, designed to promote safety in most circumstances.

Further, the cases Norfolk Southern cites in support of its proposition that Zeagler’s claims fail as a matter of law are factually distinguishable and generally involve a failure of proof on the part of the plaintiff that is not present in the case sub judice.

2. But did the railroad breach its duty to Zeagler, i.e., was it negligent? The plaintiff asserts that the employer was negligent in not requiring, or at least providing, a training course which might teach employees how to move and act once it becomes obvious that the heavy train cannot be brought to a stop in time and hence a collision is inevitable.

Grade-crossing collisions occur in a variety of circumstances. But perhaps some general advice might reduce injuries in a wide variety of such collisions, e.g., “do not leap from a speeding locomotive unless one is a Hollywood stunt man.” Whether a collision safety course is possible and helpful is a question for the jury. Just as duty is always an issue for the court, so causation is for the jury, except in “plain and palpable” cases. Additionally, in FELA litigation, our Court has noted that

[t]he common law definition of causation is not applicable here____The United States Supreme Court has called FELA an avowed departure from the rules of the common law ... [and] á response to the special needs of railroad workers who are daily exposed to the risks inherent in railroad work and are helpless to provide adequately for their own safety.

If the jury finds that the railroad did breach its duty by not having the safety course, then it must consider causation. The trial court erred when it took that issue from the jury by finding that Zeagler was “unable to demonstrate that this training would have actually helped’ protect him from injury. The trial court’s order, although erroneous, does frame the issue almost correctly. The railroad’s breach of its duty, if the jury finds that a training course was feasible, need not be a modality which would have protected Zeagler against being injured at all, but the failure to provide such a course is a cause-in-fact of the injuries if such a course would have protected the conductor or would have lessened the injuries which did occur. And the claimant in a FELA lawsuit need not provide proof-positive that the railroad’s breach of its duty was 100 percent likely to protect him or lessen his injuries. As this court explained in this leading case:

Under [FELA,] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death.

Despite the conflicting expert views outlined in Division 1, on a de novo summary judgment review, we must view the evidence and all reasonable inferences drawn from it in the light most favorable to Zeagler. In the context of negligence, “[t]he debatable quality of [the] . . . issue, the fact that fair-minded men might reach different conclusions, emphasize the appropriateness of leaving the question to the jury.”

Thus, if the jury finds that the railroad’s breach — and there was no breach if the course was not feasible — played “any part at all” in Zeagler’s mishap, then the plaintiff will have proved that the breach was a cause-in-fact of his injuries.

3. The evidence the jury may consider includes the testimony of Norfolk Southern’s own expert, Honeycutt, that in most instances it is safest not to jump from the train but rather to move to the floor and brace oneself, coupled with the testimony of Zeagler’s experts that he would not have sustained the injuries he did if he had been properly trained to take a seated and/or braced position, and that safety training would have tempered negative emotional responses such as his post-traumatic stress disorder.

The trial court’s order mentions as its rationale for finding no causation Zeagler’s own testimony that had he been seated in the conductor’s chair during the accident, he would have been “cut to shreds” by flying debris. The order notes that “the Court finds it ironic that the ‘safe position’ suggested by [Zeagler’s expert] would have led to the Plaintiff’s death in this particular accident.” However, in so finding, the trial court ignored testimony from Zeagler’s experts that had Zeagler been trained to assume a braced position in that same chair, bending below the level of the window, he would have been “all right.” Also, the trial court apparently did not consider expert testimony that if Zeagler had been trained to squat down, his injuries may not have occurred as they did.

“In numerous cases this court has reiterated the principle that questions of negligence and causation, except in plain, palpable, and indisputable cases, are solely for jury determination.” The testimony and evidence render this case not within the “indisputable” category, clearly presenting fact questions for the jury.

Causation is traditionally a decision for the jury. In the case at bar, the railroad, at trial, may argue that its failure to do its duty by providing the safety course did not play “any part at all in the injury.” Such an argument might be availing if the collision in which Zeagler allegedly was injured occurred under unusual circumstances such that a course containing quotidian advice, such as, for example, “do not leap from a speeding locomotive,” would not have aided Zeagler. Or the railroad might argue that although its negligence might have been a cause-in-fact or a contributing cause-in-fact of Zeagler’s injuries, such negligence was not a proximate cause because it was too attenuated from its unfortunate consequences.

4. Norfolk Southern further contends that Zeagler’s failure to train claim is preempted, precluded, or superseded by Federal Railroad Administration training regulations, the Federal Railroad Safety Act. Appellate courts generally do not consider issues not ruled on below, and here, the trial court did not grant a general summary judgment based on all grounds raised by Norfolk Southern. Rather, it explicitly based its order only on whether the railroad had a duty to train and whether Zeagler would have been helped by such training. Despite having found that the trial court’s ruling is erroneous, as discussed in Divisions 1, 2, and 3, we are not prevented from affirming a grant of summary judgment if it were right for any reason raised below. However, because of the state of the record and the briefing on appeal, we leave issues of whether FELA is preempted, precluded, or superseded for any further proceedings.

Judgment reversed.

Ellington, C. J., and Miller, J., concur.

Decided July 16, 2012

Reconsideration denied July 31, 2012

Dari H. Champion, Jr., for appellant.

Hall, Bloch, Garland & Meyer, John S. Stewart, for appellee.

       45 USCA § 51 et seq.

       The transcript of the hearing is not in the record before us.

       (Footnotes omitted.) Norris v. Central of Ga. R. Co., 280 Ga. App. 792, 793 (635 SE2d 179) (2006).

       Id. at 794.

        CSX Transp. v. Smith, 289 Ga. 903 (717 SE2d 209) (2011).

       Id.; 45 USCA § 51, supra.

       (Citation and punctuation omitted.) Bagley u. CSX Transp., 219 Ga.App. 544, 545 (1) (465 SE2d 706) (1995).

       (Emphasis supplied.)

        CSX Transp. v. McBride,_U. S._(III) (B) (131 SC 2630, 2643, 180 LE2d 637) (2011).

        Gallick v. Baltimore & Ohio R. Co., 372 U. S. 108, 118(11) (83 SC 659, 9LE2d 618) (1963).

        Ga. Southern & Florida R. Co. v. Peters, 284 Ga. 139, 145 (2) (643 SE2d 786) (2007).

       Id. at 144 (1).

       (Emphasis supplied.)

       See Dent v. Consolidated Rail Corp., 187 F3d 635 (6th Cir. 1999) (unpublished disposition) (court found no duty on part of railroad, as it was unclear what kind of training would have taught plaintiff to avoid “panic” during a crossing collision); Norfolk Southern R. Co. v. Denson, 774 S2d 549, 557 (II) (Ala. 2000) (court found FELAimposedno duty to train plaintiffs to shelter in an area of the locomotive where they would be protected from fire where plaintiffs presented admissible expert testimony only on avoiding bruises and contusions, not on avoiding fire); Sindoni v. Consolidated Rail Corp., 4 FSupp.2d 358, 366 (III) (4) (M.D. Pa. 1996) (court found no duty where plaintiff relied on pleadings and briefs but presented no evidence in record to show that Conrail’s training him not to jump from train but to lie on floor during collision was negligent because it was not more detailed).

       (Punctuation omitted.) Norfolk Southern R. Co. v. Schumpert, 270 Ga. App. 782, 784 (1) (608 SE2d236) (2004), quoting Sinkler v. Missouri Pacific R. Co., 356 U. S. 326,329 (78 SC 758, 2 LE2d 799) (1958).

       (Emphasis supplied.)

       (Citations and punctuation omitted; emphasis supplied.) Currin v. Seaboard System R., 187 Ga. App. 751, 752-753 (371 SE2d 142) (1988).

        Norris, supra.

       (Citations omitted.) Bailey v. Central Vermont R., 319 U. S. 350, 353 (63 SC 1062, 87 LE2d 1444) (1943).

       Norfolk Southern contends, correctly, that three of its own accident reports may not be considered, as they are inadmissible hearsay evidence according to this court’s findings in Wynn v. City of Warner Robins, 279 Ga. App. 42, 50-51 (4) (630 SE2d 574) (2006). As such, we do not consider them in our analysis.

        Atlantic Coast Line R. Co. v. Daugherty, 116 Ga. App. 438, 443 (2) (157 SE2d 880) (1967).

       See Currin, supra (“[u]nder the FELA the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought”) (citation and punctuation omitted).

        Currin, supra at 753.

       It is the personal opinion of the author, although not the opinion of this court, that proximate cause should always be an issue for the jury, even in so-called plain and palpable cases. Under present law, an appellate court may intervene in a lawsuit on policy grounds, like a deus ex machina, at two points in the determination of liability, duty or proximate cause. Litigation would be more predictable if policy considerations could apply on only one issue, duty. See generally C. Mikell, 27 Georgia State Bar J. 2, 60; see also L. Green, Rationale of Proximate Cause (Vernon Law Book Co. 1927) (“All in all this confused method of dealing with the problem, though widely accepted, is a wretched one, inexcusably perpetrated by intelligent judges, and utterly devoid of scientific foundation.”); Palsgraf v. Long Island R. Co., 248 N.Y. 339, 352 (162 NE 99) (1928) (Andrews, J., dissenting) (“This is not logic. It is practical politics”).

       See, e.g., Carter v. Glenn, 243 Ga. App. 544, 551 (533 SE2d 109) (2000).

        McPherson v. McPherson, 307 Ga. App. 548, 550 (1) (705 SE2d 314) (2011).

       See City of Gainesville v. Dodd, 275 Ga. 834, 839 (573 SE2d 369) (2002) (Sears, P. J., concurring specially) (courts may decline to review issue not ruled upon by the trial court if issue is not adequately briefed or argued by the parties on appeal).