text:
    A15A0991.
    LOEHLE et al. v. GEORGIA DEPARTMENT OF PUBLIC SAFETY et al.
    (780 SE2d 469)
   Miller, Judge.

In this case arising from a police chase around the Georgia Capitol, Allan Loehle and Nicole Livieratos, individually and as the personal representative of Zach Loehle, a minor (collectively, “Loehle”), sought interlocutory review of the trial court’s orders granting the Georgia Department of Public Safety’s (“DPS”) motion to dismiss on sovereign immunity grounds and denying Loehle’s spoliation motion against the City of Atlanta (“City”). Because we find that DPS did not waive its immunity, we affirm the grant of DPS’s motion to dismiss. We vacate the denial of Loehle’s spoliation motion and remand this case for the trial court to reconsider the issue in light of the correct legal standard.

We review de novo a trial court’s denial of a motion to dismiss based on sovereign immunity grounds, which is a matter of law. However, factual findings by the trial court in support of its legal decision are sustained if there is evidence authorizing them, and the burden of proof is on the party seeking the waiver of immunity.

(Citations omitted.) Ga. Dept. of Human Resources v. Johnson, 264 Ga. App. 730, 731 (592 SE2d 124) (2003). See also Bonner v. Peterson, 301 Ga. App. 443 (687 SE2d 676) (2009) (“the trial court’s pre-trial ruling on factual issues necessary to decide the OCGA § 9-11-12 (b) (1) motion is reviewed on appeal under the any evidence rule”).

The evidence, which is largely undisputed, shows that on January 6, 2009 at approximately 3:00 p.m., after receiving a request by Atlanta Police Department officers for assistance with a vehicle reported stolen during a carjacking the previous day, two Georgia State Patrol troopers located the vehicle proceeding southbound on Interstate 75/85 near the exit for Martin Luther King, Jr. Drive (‘MLK”). The first trooper pulled in directly behind the vehicle, and the vehicle signaled a right turn and entered the exit lane for MLK. The trooper followed and activated his blue lights to initiate a traffic stop. The vehicle increased its speed up the exit ramp, and the trooper activated his siren. The vehicle bypassed several stopped vehicles headed westbound on MLK at its intersection with Jesse Hill, Jr., Drive, driving through a red light. The vehicle then signaled a left turn onto Capitol Avenue; for one block, Capitol Avenue is a one-way street, and the vehicle proceeded southbound — the wrong way — down Capitol Avenue. The vehicle then entered the intersection of Capitol Avenue and Memorial Drive, striking Livieratos’ vehicle and injuring Loehle, Livieratos, and their son Zach.

1. Loehle contends that the trial court erroneously granted DPS’s motion to dismiss for lack of subject matter jurisdiction based on a flawed application of OCGA § 50-21-24 (6). We discern no error.

OCGA § 50-21-24 (6) provides that “[t]he state shall have no liability for losses resulting from . . . the failure to provide, or the method of providing, law enforcement, police, or fire protection.” (Emphasis supplied.) Although “method” was initially interpreted broadly, our Supreme Court has

construe [d] the exception to the waiver of sovereign immunity found in OCGA § 50-21-24 (6) as authorizing the application of sovereign immunity to the making of policy decisions by state employees and officers including those relating to the amount, disbursement, and use of equipment and personnel to provide law enforcement, police or fire protection services, and,to the acts and omissions of state employees and officers executing and implementing those policies.

Ga. Forestry Comm. v. Canady, 280 Ga. 825, 830 (632 SE2d 105) (2006). Our Supreme Court highlighted the distinction between the formulation of a policy and an officer’s adherence to the policy by noting that

if the negligence causing an injury lies in the formulating of policy — i.e., the determining of the method of police protection to provide — the government remains immune from liability. If, however, an officer or employee acts negligently in carrying out that policy, government liability may exist under the Tort Claims Act.

(Punctuation omitted.) Ga. Dept. of Public Safety v. Davis, 285 Ga. 203, 205-206 (676 SE2d 1) (2009). Here, Loehle does not challenge DPS’s policies concerning pursuits. Rather, Loehle contends that troopers failed to properly follow those policies. See id. at 206 (“Although the state may be immune from liability for negligence in creating a certain policy which causes injury during its implementation, such immunity is unavailable for an employee’s allegedly negligent act or omission which is not authorized by any policy.”). See also OCGA § 40-6-6 (d) (2). Accordingly, the sole issue is whether the troopers were negligent in carrying out certain DPS policies. We conclude that they were not.

In his brief to this Court, Loehle cites three DPS policies. First, Policy 17.02.2 which provides, in full, that

[s]worn members of the Department are expected to make reasonable efforts to apprehend violators who flee or otherwise attempt to elude. However, the Department recognizes and respects the value and special integrity of each and every human life. In vesting members with the lawful authority to use force in the protection of the public welfare, a special balancing of all human interests is required. Members, in the performance of their duty, must use only the force that is reasonably necessary to bring an incident under control. It is paramount that members exercise prudent and sound judgment in their actions when engaging in pursuits. Members must comply with existing laws governing vehicle pursuits. At the same time, they must use sound discretion and good judgment in each pursuit. It must be understood that every violator will not be apprehended. In some situations the most professional and reasonable decision would be to terminate a pursuit in the interest of their own and the public’s safety.

Second, Policy 17.02.4 A. which initially states that “[i]n determining the appropriateness, speed and extent of a pursuit, the sworn member must exercise great care to ensure that his or her actions are objectively reasonable.” That policy then contains a listing of factors used to consider whether the member’s actions are “objectively reasonable,” two of which Loehle mentions: (1) “[t]he nature of the offense committed by the suspect, the potential danger to the public if the suspect is not immediately apprehended and the probability of the suspect’s arrest at a later date”; and (2) “[t]he existing traffic conditions, road surface and width, weather, visibility, road familiarity, type of area (urban, residential, rural) or any condition that would create additional dangers for present traffic or the public[.]” And third, Policy 17.02.4 B. 1. a. which provides that

[t]he law permits sworn members who are engaged in pursuits to exceed the speed limit and to disregard other traffic regulations as necessary in apprehending the violator, but only: 1) [i]f the emergency lights and siren are employed, and 2) [t]he officer exercises due regard for the safety of all persons.

In sum, Loehle claims that DPS waived sovereign immunity because the troopers violated Policy 17.02.2 by chasing the suspect at excessive speeds and “blowing through multiple red lights” (claims which are not supported by Loehle’s citations to the record); the troopers violated Policy 17.02.4 A. in initiating pursuit in heavy traffic, down a one-way street the wrong way when only a property crime — entering a stolen automobile — had been committed; and the troopers violated Policy 17.02.4 B. 1. a. by maintaining the pursuit despite the presence of an aerial unit to monitor the situation.

The trial court made findings of fact concerning the pursuit and found that the troopers

appropriately implemented the law enforcement policies of [DPS] when initiating apprehension of the stolen Jaguar, previously carjacked. When the suspect fled, none of the listed reasons to terminate pursuit as outlined in [DPS] Policy 17.02.04 (E) were present. Furthermore, [the troopers] acted with due regard during the pursuit by using [their] flashing lights and sirens and trying to apprehend suspects driving a stolen car known to have been recently involved in a violent crime.

As a result, the trial court concluded that the troopers faithfully implemented DPS’s policies and procedures and DPS did not waive sovereign immunity pursuant to OCGA § 50-21-24 (6).

Evidence in the record supports the trial court’s findings. Notably, one of the troopers involved in the pursuit testified that his decision to initiate a traffic stop on the stolen vehicle was the result of his training in DPS’s Pursuit Policy and his experience in apprehending fleeing motorists. The trooper further testified that, in the context of Policy 17.02.4 A. and its various factors, he received word that the stolen vehicle was taken during a carjacking involving a firearm and that, as a result, he believed the suspects presented potentially lethal threats to the public. The trooper believed that the possibility of capturing the suspects would be low if the pursuit was discontinued because the suspects could not be tied to the stolen vehicle.

The trooper also considered traffic conditions based upon his experience with traffic in the State Capitol area and determined that, in the middle of a weekday afternoon, traffic would be light. When the suspect turned left onto Capitol Avenue from MLK, proceeding the wrong way down a one-block portion of Capitol Avenue, the trooper again noted traffic conditions and observed no traffic coming down Capitol Avenue and, therefore, a low risk of a head-on collision with other motorists. The trooper considered the factors for discontinuing a pursuit and he concluded that “the danger of permitting the suspects to escape outweighed the potential risk of the pursuit and, therefore, it was never ‘too hazardous’ to continue the pursuit.”

Based on these factual findings, which are supported by evidence from the record, we conclude that the trial court correctly found that DPS did not waive sovereign immunity. As a result, Loehle’s first enumeration of error is without merit.

Moreover, Loehle’s reliance on Davis, supra, 285 Ga. at 203-204, in support of his argument that DPS waived its immunity is misplaced, because that case is distinguishable on its facts. In Davis, a state trooper was traveling behind a pickup truck and began running radar on vehicles approaching him in the opposite lane. Id. The trooper used the pickup truck as cover “in a technique known as blocking.” Id. at 204. When the pickup truck stopped and signaled a left turn, the trooper struck the pickup truck from behind. Id. Our Supreme Court noted that while DPS “has a policy of detecting and apprehending individuals who exceed the speed limit by use of radar and motor vehicles,” the policy “obviously does not include directing the officer to strike any vehicle in his path in apprehending a speeder.” Davis, supra, 285 Ga. at 206. Central to the Supreme Court’s holding was evidence from a State Patrol Crash Review Board finding that the collision was preventable and that the trooper “did not operate his car ‘in a manner consistent with policy and training.’ ” Id. In concluding that DPS waived sovereign immunity, the Supreme Court found that the trooper

clearly was not acting pursuant to policy. Basically, he followed too closely and did not pay attention. This is not a policy decision, but rather simple, preventable negligence. Any such negligence was not a part of the formulated policy. Therefore, the State is subject to liability for injuries resulting from the negligence, if any, of the highway patrolman in colliding with Ms. Davis’ vehicle.

(Citations and punctuation omitted.) Id. at 206-207.

No such evidence exists in this case. To the contrary, the evidence reveals that the troopers in this case followed DPS policies concerning pursuits, including taking into account “[t]he nature of the offense committed by the suspect, the potential danger to the public if the suspect is not immediately apprehended and the probability of the suspect’s arrest at a later date” and “[t]he existing traffic conditions, road surface and width, weather, visibility, road familiarity, type of area (urban, residential, rural) or any condition that would create additional dangers for present traffic or the public.” Moreover, the record supports the trial court’s finding that the troopers exercised due regard for the safety of others during the pursuit. Finally, unlike in Davis, the State Patrol Pursuit Critique in this case concluded that the trooper’s actions were objectively reasonable.

2. Loehle also contends that the trial court erred in denying his spoliation motion against the City based on the Atlanta Police Department’s destruction of audio recordings of the pursuit pursuant to the Department’s retention schedule. We conclude that the trial court applied an erroneous legal theory in denying Loehle’s motion, and we remand this case for further proceedings.

In denying Loehle’s motion against the City of Atlanta for spoliation of the audio recordings, the trial court found that Loehle failed to come forward with any evidence that the City had notice that Loehle contemplated litigation before the recordings were destroyed. In making that finding, the trial court specifically relied on the decision in Craig v. Baily Brothers Realty, Inc., 304 Ga. App. 794, 796-797 (1) (697 SE2d 888) (2010), which held that, in order to meet the standard of proving spoliation, “the injured party must show that the alleged tortfeasor was put on notice that the party was contemplating litigation[.]” (Citation and punctuation omitted.) The Supreme Court of Georgia, however, recently disapproved of Craig and other Court of Appeals spoliation cases to the extent that those cases erroneously held that a defendant’s duty arises only when the injured party has provided actual or express notice of litigation. See Phillips v. Harmon, 297 Ga. 386, 398 (II), n.10 (774 SE2d 596) (2015).

In Phillips, the Supreme Court held that, in addition to actual notice,

[njotice that the plaintiff is contemplating litigation may also be derived from, . . . other circumstances, such as the type and extent of the injury; the extent to which fault for the injury is clear; the potential financial exposure if faced with a finding of liability; the relationship and course of conduct between the parties, including past litigation or threatened litigation; and the frequency with which litigation occurs in similar circumstances.

Id. at 397 (II).

Here, the trial court’s denial of Loehle’s spoliation motion was based on the erroneous legal theory that actual or express notice of litigation is required in spoliation cases, and this Court cannot affirm a judgment based on an erroneous legal theory. See Phillips, supra at 397 (II); Amin v. Guruom, 280 Ga. 873, 875 (635 SE2d 105) (2006). Accordingly, we vacate the denial of Loehle’s spoliation motion and remand this case for the trial court to reconsider that motion in light of the correct legal analysis as set forth herein.

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

Barnes, P. J., Ellington, P. J., Dillard, McFadden and Branch, JJ., concur. Andrews, P. J., concurs as to Division 1 and dissents as to Division 2.

ANDREWS, Presiding Judge,

concurring in part and dissenting in part.

1. I concur fully in Division 1 of the majority opinion which concludes that the trial court correctly found that the Georgia Department of Public Safety did not waive sovereign immunity. However, because the trial court properly denied Loehle’s spoliation motion against the City of Atlanta based upon the arguments presented to it, and a remand is therefore unnecessary under the facts of this case, I respectfully dissent to Division 2.

2. Stated succinctly,

[tjhe term “spoliation” is used to refer “to the destruction or failure to preserve evidence” that is relevant to “contemplated or pending litigation.” Such conduct may give rise to the rebuttable presumption that the evidence would have been harmful to the spoliator. However, in order for the injured party to pursue a remedy for spoliation, the spoliating party must have been under a duty to preserve the evidence at issue.

(Citations omitted.) Phillips v. Harmon, 297 Ga. 386, 393-394 (774 SE2d 596) (2015). See also Whitfield v. Tequila Mexican Restaurant No. 1, 323 Ga. App. 801, 807 (6) (748 SE2d 281) (2013), overruled on other grounds, Harmon, 297 Ga. at 398. Of particular relevance here, “[t]he trial court has wide discretion in resolving spoliation issues, and we will not disturb its ruling absent abuse.” Kitchens v. Brusman, 303 Ga. App. 703, 705 (1) (694 SE2d 667) (2010).

Here, the trial court found that: (1) the collision between the plaintiffs and the driver of the stolen vehicle occurred on January 6, 2009; (2) pursuant to Atlanta Police Department Policy Manual, Standard Operating Procedure 4.18.3 (1), audio recordings “are kept for approximately 120 days before being reused,” meaning that the recording would have been reused on or about May 6,2009; (3) Loehle submitted ante litem notice to the City on June 26, 2009; and (4) the City received Loehle’s ante litem notice on or about June 29, 2009. Loehle filed its civil action against the City on December 13, 2010. It was not until December 12, 2012, in an e-mail from the City in response to Loehle’s discovery requests, that Loehle learned that the audio recordings had been destroyed. As a result, the trial court concluded that the City had no notice that Loehle contemplated litigation and, as a result, “was not under a duty to preserve the recordings of the radio transmissions and merely complied with its policy of reusing tapes after 120 days have elapsed.”

Of course, the trial court’s conclusion was based upon the arguments presented to it, and at no point during briefing to the trial court (or, for that matter, to this Court) did Loehle argue that the City had notice of Loehle’s claim by any other means other than the ante litem notice (which arrived after the 120-day period in APD’s policies). Based upon the state of our law at the time this case was litigated in the trial court, such an argument concerning alternate notice could have been made. See Silman v. Assoc. Bellemeade, 286 Ga. 27 (685 SE2d 277) (2009); Baxley v. Hakiel Indus., 282 Ga. 312, 313-314 (647 SE2d 29) (2007). It was not. In this context, Harmon does not supply a basis for remand to permit new arguments that could have been previously raised. And because Loehle has failed to demonstrate that the trial court abused its discretion, see Kitchens, 303 Ga. App. at 705 (1), I would affirm the trial court’s order denying Loehle’s motion for spoliation.

Decided November 20, 2015

Clark & Smith, John C. Clark; Childers & McCain, Christy C. Childers, for appellants.

Samuel S. Olens, Attorney General, Robert L. Bunner, Senior Assistant Attorney General, for appellees.

       The troopers’ dashboard cameras also recorded the pursuit.

       When a law enforcement officer in a law enforcement vehicle is pursuing a fleeing suspect in another vehicle and the fleeing suspect damages any property or injures or kills any person during the pursuit, the law enforcement officer’s pursuit shall not be the proximate cause or a contributing proximate cause of the damage, injury, or death caused by the fleeing suspect unless the law enforcement officer acted with reckless disregard for proper law enforcement procedures in the officer’s decision to initiate or continue the pursuit.

       The trial court also noted that it had “previously summarized the underlying facts giving rise to the subject accident and Complaint” in a prior order.

       The second trooper involved in the pursuit, Trooper Chad LeCroy, was killed in the line of duty almost two years after the pursuit in this case.

       At the time of the pursuit, the trooper was unaware that the pursuit was being monitored by an Atlanta Police helicopter, but opined that the helicopter would not have been able to apprehend the suspects had they fled on foot — which they did after crashing into Loehle’s vehicle.

       Loehle’s claim that the trial court applied the wrong standard in deciding that sovereign immunity had not been waived is unavailing. Loehle argues that “[t]he standard for sovereign immunity purposes is whether the claims arise out of the negligent implementation of and reckless disregard” for DPS policies. Therefore, Loehle contends the trial court’s conclusion that troopers “faithfully implemented [DPS] policies and procedures” is erroneous. That argument ignores the totality of the trial court’s findings, which include statements that the troopers “appropriately implemented the law enforcement policies of [DPS]” and that the troopers “acted with due regard during the pursuit.” These conclusions are tantamount to a determination that the troopers did not negligently implement or recklessly disregard DPS policies. As a result, no further action is needed. See generally Weickert v. Weickert, 268 Ga. App. 624, 628-629 (2) (602 SE2d 337) (2004) (remand not necessary to require trial court to use exact language in conclusions of law).

       See also Blackston v. Ga. Dept. of Public Safety, 274 Ga. App. 373, 375, n. 10 (618 SE2d 78) (2005) (sovereign immunity applied to pursuit in which troopers followed suspect through stop signs and. red lights, and “in[to] an oncoming lane of traffic,” and which ended in the suspect’s head-on collision with another vehicle); Hilson v. Dept. of Public Safety, 236 Ga. App. 638, 640-641 (512 SE2d 910) (1999).


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A15A0993.
    HILL v. COLE CC KENNESAW GA, LLC et al.
    (780 SE2d 537)
   PHIPPS, Presiding Judge.

Shakira Hill filed a complaint against Cole CC Kennesaw GA, LLC (“Cole CC”), Corporate Facilities Group, Inc. (“CFG”), and Kone, Inc., to recover for injuries she allegedly sustained when she tripped and fell while entering an elevator that had not stopped level with the floor. Cole CC owned the building where the incident occurred, CFG managed the premises, and Kone serviced and maintained the elevators. Hill alleged that the defendants were negligent because they had failed to properly maintain the elevators. Cole CC, CFG, and Kone moved for summary judgment, which motions the trial court granted in two separate orders.

In a prior appeal, Hill v. Kone (“Hill I”), Hill challenged the grant of summary judgment to Kone. This court reversed that judgment. Here, Hill appeals the grant of summary judgment to Cole CC and CFG. For the reasons that follow, we reverse that grant of summary judgment as well.

[0]n appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

So viewed, the evidence showed that on November 4, 2009, an elevator technician employed by Kone was at the building in which Hill worked, performing preventive maintenance on elevators number one, three, and four, and a freight elevator. The technician left the building at 5:00 p.m. after he purportedly completed the maintenance and the elevators were working properly. At about 10:00 that night, Hill and a co-worker entered elevator number four. The elevator had stopped such that its floor was not level with the building’s floor. Hill did not notice the misleveling, and tripped, striking her head on a metal railing inside the elevator. Hill’s co-worker then pushed a button on the elevator, causing the elevator to descend to the lobby floor, where a security officer called 911. Hill was taken to a hospital for treatment. After Hill’s fall, another building occupant rode the same elevator to a different floor, then returned in the elevator to the lobby and reported that the elevator was not functioning properly. The incident was then reported to the Georgia Department of Labor, which sent a representative to inspect the elevator with a Kone employee the next day. There is evidence that they inspected only elevator number three — although Hill had fallen in elevator number four — and that elevator number four was not removed from service. (No defects were found during the inspection of elevator number three.)

Prior Appeal

In December 2013, the trial court granted Kone’s motion for summary judgment, holding that Kone had no knowledge of the leveling problem before the incident occurred, that Kone had a regularly scheduled inspection and service program and had performed maintenance and inspection on the day of the incident, and that there was no evidence that the elevator had a defect on the date of the incident.

In reversing the trial court’s judgment (in November 2014), this court in Hill I held that factual issues remained regarding whether Kone had complied with OCGA § 8-2-106, which requires property owners to take certain actions following elevator accidents involving personal injury or death. OCGA § 8-2-106 provides, in relevant part:

(a) The owner or lessee shall report, by telephone, to the enforcement authority on the same day or by noon on the next work day,... all elevator... related accidents involving personal injury or death. The owner or lessee shall also provide a written report of this accident within seven days.
(c) Any elevator ... involved in an accident described in subsection (a)... of this Code section shall be removed from service at the time of the accident. The equipment shall not be repaired, altered, or placed back in service until inspected by a certified inspector for the enforcement authority.

The Hill I court explained:

[FJailure to comply with th[at] statute, whether intentionally or by mistake, would constitute a form of spoliation of evidence, because by working on the elevator prior to inspection, the evidence would have been tampered with, altered, or destroyed. Spoliation creates the presumption that the evidence would have been harmful to the spoliator. Proof of such conduct would raise a rebuttable presumption against Kone that the evidence favored Hill, a fact rendering summary judgment inappropriate.

The court reasoned:

Here, there is evidence that the inspection authorities were notified [of the accident] and came to inspect the elevator, but there is some evidence that the post-incident inspection was done on the wrong elevator. Thus, there is a question of fact as to whether the correct elevator was taken out of service and whether the correct elevator was inspected immediately following the incident, as required by OCGA § 8-2-106. [T]he fact that the state inspector could not identify precisely what caused the misleveling can hardly be surprising in light of the evidence that the inspection was on the wrong elevator. Because the record contains a factual dispute as to compliance with OCGA § 8-2-106, and in light of . . . expert testimony as to Kone’s failure to properly maintain the elevator at issue, summary judgment was not appropriate.

This Appeal

In their motion for summary judgment, Cole CC and CFG contended that there was no evidence that they had failed to make the premises safe, and that they could not be held vicariously liable for Kone’s negligence because the trial court had granted summary judgment in Kone’s favor.

In its order granting summary judgment to Cole CC and CFG, the trial court found that they (Cole CC and CFG) had no knowledge or notice prior to the incident that the elevator had a defect; that Kone had a regularly scheduled inspection and service program to deal with any problems with the elevators; that Cole CC and CFG were aware that Kone was performing work on the elevators; that Cole CC and CFG had no notice of a defect on the day of the alleged incident; that there was no evidence that they had superior knowledge that the elevator was not working properly or had malfunctioned prior to the alleged incident; and that because Kone had been granted summary judgment, Cole CC and CFG could not be held vicariously liable for Kone’s alleged negligence.

Hill contends that the trial court erred by granting summary judgment to Cole CC and CFG because (1) there is evidence that they had actual and superior knowledge of the defect and failed to properly maintain the elevator; and (2) any lack of evidence showing the existence of a defect on the date of the accident is due to spoliation.

1. Knowledge of defect and duty to maintain elevator. Pertinent to Cole CC, “[t]he owner of an office building, equipped with an elevator which is operated for conveying his tenants and their employees and patrons to and from the various floors,” has a duty to protect passengers in the elevator.

This duty requires him to exercise extraordinary diligence on behalf of himself and his agents to protect the lives and persons of his passengers____This duty can not be waived or released even by an express contract. Being one in which the public has an interest, public policy forbids such a waiver or release. For the same reason that the duty cannot be avoided by contract with the passengers, this duty of extraordinary diligence cannot be delegated to a third party. The owner’s duty remains in place regardless of whether a third party acquires a duty by undertaking maintenance or repair. The owner is liable for slight negligence.

As to CFG, “[a]n agent who undertakes the sole and complete control and management of the principal’s premises is liable to third persons, to whom a duty is owing on the part of the owner, for injuries resulting from his negligence in failing to make or keep the premises in a safe condition.”

Cole CC and CFG concede that they “cannot avoid their duty [to protect the elevator passengers] by contracting with a third party, and they remain vicariously liable for any negligence by Kone.” They also acknowledge that they “could be held liable on the basis of any slight negligence which proximately caused the injuries to [Hill], or on the basis of [their] vicarious liability for slight negligence on the part of Kone.” Yet, at the same time, they assert that there is no evidence that they were negligent, stating that they, “through the contract with Kone[,] had an aggressive maintenance and repair program in place.” This assertion is unconvincing because it ignores the rule that the duty of extraordinary diligence to elevator passengers cannot be delegated to a third party.

As found in Hill I, there is evidence of Kone’s negligence, including “expert testimony as to Kone’s failure to properly maintain the elevator at issue.”

Hill relied in part on an affidavit from her expert who averred that the Kone service technician who maintained the elevators did so in a manner inconsistent with the appropriate KONE maintenance manual. For example, the technician denied in a deposition that certain leveling characteristics should be checked during routine maintenance, which denial contradicted the procedure in the maintenance manual. The expert also noted problems with Kone’s record keeping (including mislabeling which elevator had been serviced) and that all of the elevators in the building had experienced leveling issues in the past. The expert averred that Kone breached industry standards for proper maintenance and inspection and that “had the proper tests and inspection and maintenance of the elevators taken place, the components that were causing misleveling issues would have been identified, and Kone would have known to make the needed corrections to the equipment . . . before the malfunction” that injured Hill.

Notably, there was also evidence that a Kone technician had previously discussed the elevators’ misleveling problems with a CFG employee. Thus, there was evidence of Cole CC’s and CFG’s negligence, precluding the grant of summary judgment.

Contrary to the assertion of Cole CC and CFG, Brady v. Elevator Specialists is not controlling here. In that case, the plaintiffs “[did] not show that the inspections or maintenance actually performed were negligent or that [the owner or elevator maintenance provider] knew or were put on notice during these procedures that [the] elevator . . . was defective,” and there was “no evidence that [the] maintenance procedures, as formulated or as carried out, were not in conformity with [the elevator manufacturer’s maintenance] guidelines.” Here, however, there was evidence that Kone had breached industry standards for proper elevator maintenance and inspection and that, absent that breach, the cause of the misleveling would have been identified and Kone would have known what corrections were needed. Further, unlike the instant case, Brady did not involve a spoliation issue.

2. Spoliation of evidence. Cole CC and CFG assert that the court properly granted their motion for summary judgment because there is no evidence that the misleveling on the date of the incident was due to a defect, and an inspection conducted after the incident revealed no problems with the elevator. Regarding OCGA § 8-2-106, they assert that a tenant of the building, not Cole CC or CFG, moved the elevator before an inspection could occur, and that they complied with the statute once they learned of the incident.

Decided November 20, 2015.

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

Dodson & Associates, Joseph D. Perrotta; Swift, Currie, McGhee & Hiers, John W. Campbell, Pamela N. Lee, for appellees.

However, Hill contends that the trial court erred by granting summary judgment to Cole CC and CFG because any lack of evidence showing the existence of a defect on the date of the accident was due to spoliation.

As the court stated in Hill I, there was evidence that the elevator at issue was not removed from service at the time of the accident and was placed back in service before inspection. The appellees’ failure to comply with the statute, whether intentionally or by mistake, constituted a form of spoliation, rendering summary judgment inappropriate.

Judgment reversed.

Doyle, C. J., and Boggs, J., concur.

       329 Ga. App. 716 (766 SE2d 120) (2014).

       Id.

       Id.

        Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006) (citations omitted); see Hood v. Todd, 287 Ga. 164, 165 (695 SE2d 31) (2010).

       See Hill I, supra at 717.

       Id.

       Id.

       Id.

       Id.

       Id.

       Id. at 718-719.

       Id. at 718 (punctuation and footnotes omitted).

       Id. at 719 (punctuation and footnotes omitted).

       The motion was filed in February 2014.

       The trial court entered its order granting summary judgment to Cole CC and CFG in June 2014.

        Gaffney v. EQK Realty Investors, 213 Ga. App. 653, 655 (445 SE2d 771) (1994).

       Id.

        Ramey v. Pritchett, 90 Ga. App. 745, 751 (3) (84 SE2d 305) (1954) (citation omitted).

       See Gaffney, supra.

       Supra.

       See Hill I, supra at 719.

       Id. at 717-718.

       See generally Ruben’s Richmond Dept. Store v. Walker, 227 Ga. App. 867, 868 (1) (490 SE2d 536) (1997); Gaffney, supra.

       287 Ga. App. 304, 308-310 (2) (653 SE2d 59) (2007) (affirming grant of summary judgment to premises owner and elevator maintenance provider where plaintiff failed to show defendants’ superior knowledge of the defective condition).

       Id. at 308 (2).

       Id. at 305.

        Hill I, supra at 718-719.

       See Brady, supra. See generally Benefield v. Tominich, 308 Ga. App. 605, 609 (1) (708 SE2d 563) (2011) (“in order to prevail at the summary-judgment stage based on a lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident”) (punctuation and footnote omitted) (physical precedent only). The spoliation issue in the instant case is discussed in Division 2, infra.

        Hill J, supra.

       See id.; Thomas v. MARTA, 300 Ga. App. 98-102 (1) (684 SE2d 83) (2009); Lane v. Montgomery Elevator Co., 225 Ga. App. 523, 525 (1) (484 SE2d 249) (1997).


author: Branch, Judge.

text:
    A15A1033.
    GEORGIA DEPARTMENT OF COMMUNITY HEALTH v. NEAL.
    (780 SE2d 475)
   Branch, Judge.

Plaintiff Trecia Neal filed this action seeking class certification on behalf of Gold and Silver members of the State Health Benefits Plan (“SHBP” or “the Plan”) for 2014. Neal’s complaint alleges that the Georgia Department of Community Health (“the Department”) breached its contract with these members when it retroactively eliminated the three tiers of co-insurance for healthcare services and instead combined them into a single schedule of co-payments, adding co-payments for pharmacy benefits and certain medical visits, and also refused to reduce premiums. The Department moved to dismiss on the ground of sovereign immunity, but the trial court denied the motion on the ground that the Plan documents, read with relevant statutes and regulations, created a written contract that established a waiver of sovereign immunity. The Department appealed this ruling under the collateral order doctrine, and now argues that no such written contract amounting to a waiver has been proven. We agree and reverse.

“We review de novo a trial court’s ruling on a motion to dismiss based on sovereign immunity grounds, which is a matter of law. Factual findings are sustained if there is evidence supporting them, and the burden of proof is on the party seeking the waiver of immunity.” Bd. of Regents of the Univ. System of Ga. v. Canas, 295 Ga. App. 505, 509 (3) (672 SE2d 471) (2009) (citation and punctuation omitted).

Although we would view the record in favor of the trial court’s judgment, the relevant facts are not in dispute. The Plan is comprised of three health insurance plans for state employees, public school teachers, and public school employees respectively. Neal is an employee of the DeKalb County school system. During the open enrollment period in late 2013, the Department offered Neal and other SHBP members three health insurance coverage options for the upcoming calendar year 2014: Gold, Silver, and Bronze. In exchange for higher premiums, Gold and Silver members would receive more money for their Health Reimbursement Accounts, lower deductibles, lower co-insurance rates, and lower out-of-pocket máximums than Bronze members. Neal registered online, verified her address and dependents, selected Gold coverage, clicked on a “CONFIRM” button, and received a confirmation code. In doing so, Neal expressly accepted SHBP’s “terms and conditions,” including her “responsibility to review any applicable Plan documents... including [those] posted electronically” on the Department’s SHBP website “at the time of [her] decision.”

These “Plan documents,” which were posted on the SHBP website, included a 23-page so-called Active Decision Guide, prefaced by a welcome letter from the Commissioner of the Department, and a 134-page Summary Plan Description, including a schedule of benefits, descriptions of numerous specific benefits and services, payment and appeal procedures, and notices. According to the Active Decision Guide, the Summary Plan Description governed the terms of coverage. On the page where it announces the dates of open enrollment for the 2014 Plan, the Active Decision Guide states: “The material in this booklet is for information purposes only and is not a contract. It is intended only to highlight the principal benefits of the SHBP plan options.” (Emphasis supplied.) The same page of the Active Decision Guide also states that “[a]variability of SHBP options may change based on federal or state law changes or as approved by the Board of the Department of Community Health (DCH)” and that “[p]remiums for SHBP options are established by the DCH Board and may be changed at any time by the Board resolutions subject to advance notice.”

Nothing in the Summary Plan Description identifies the Plan as a contract. Indeed, the Summary Plan Description often emphasizes that the administrators of the Plan, including a “Medical Claims Administrator,” retained the power to “waive, enhance, change or end certain medical management processes” if “in the [administrator’s] discretion such change further[s] the provision” of medical services. The September 2013 Board resolution estabhshing 2014 premium rates includes a notice as follows:

The Board of Community Health sets all member premiums by resolution and in accordance with the law and applicable revenue and expense projections. Any subsidy policy adopted by the Board may be changed at any time by Board resolution, and does not constitute a contract or promise of any amount of subsidy.

On January 27, 2014, facing financial shortfalls in the Plan, the Department eliminated the three tiers of co-insurance (Gold, Silver, and Bronze) for most health care services and established a single tier of co-payments made retroactive to January 1. Gold and Silver members were required to continue paying higher monthly premiums even as their co-payments were increased to Bronze levels.

On May 14,2014, Neal filed this action seeking class certification on behalf of Gold and Silver Plan members and asserting breach of contract and breach of implied covenant claims against the Department. Exhibits attached to the original complaint included the September 2013 Board resolution adopting premium rates for 2014 and the January 2014 resolution and website page announcing the changes to the Plan put at issue by Neal. In June 2014, after the Department moved to dismiss on the ground that Neal had not proven a waiver of sovereign immunity by written contract, Neal amended her complaint, asserting the same claims but now also attaching the Active Decision Guide and the Summary Plan Description. The Department again moved to dismiss on sovereign immunity grounds. After a hearing, the trial court denied the Department’s motion on the ground that “the Plan [documents, including all contemporaneous writings thereto, constitute a written contract” such that the Department waived its sovereign immunity as to Neal’s claims. This appeal followed.

The Department argues that the trial court erred in denying the Department’s motion to dismiss because Neal had not established that the SHBP documents created a contract between her and the Department sufficient to waive the State’s sovereign immunity. The Department also argues that the trial court erred when it concluded that the relevant statutes and regulations created a contract between Neal and the Department for purposes of sovereign immunity. We agree with both of these contentions.

1. The Express Contract Exception to Sovereign Immunity. The trial court held that when Neal enrolled in the Plan and paid premiums for enhanced health care coverage, she entered into a written contract with the Department, memorialized in the Commissioner’s welcome letter at the beginning of the Active Decision Guide, such that the Department’s sovereign immunity was waived. This conclusion was erroneous.

Except as specifically provided in [the Georgia Constitution of 1983], sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.

Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e). “Where the sovereign has sovereign immunity from a cause of action, and has not waived that immunity, the immunity rises to a constitutional right and cannot be abrogated by any court.” Tyson v. Bd. of Regents of the Univ. System of Ga., 212 Ga. App. 550-551 (442 SE2d 9) (1994), citing State Bd. of Ed. v. Drury, 263 Ga. 429, 430 (1) (437 SE2d 290) (1993).

One of the limited circumstances in which the State has waived its sovereign immunity is in “any action ex contractu for the breach of any written contract now existing or hereafter entered into by the state or its departments or agencies.” Ga. Const, of 1983, Art. I, Sec. II, Par. IX (c). “It is axiomatic that the party seeking to benefit from the waiver of sovereign immunity bears the burden of proving such waiver.” Ga. Dept. of Community Health v. Data Inquiry, 313 Ga. App. 683, 685 (1) (722 SE2d 403) (2012) (citation and punctuation omitted). “[I]n order to overcome the Department’s assertion of sovereign immunity,” Neal has “the burden of showing that the contract sought to be enforced is in writing and contains all of the terms necessary to constitute a valid contract.” Id. (emphasis supplied). As we have previously explained in the context of sovereign immunity,

[a] valid written contract may be formed when there are multiple, signed, contemporaneous agreements between the parties which demonstrate their intent to enter into a binding contract and the individual documents, considered together, include all the necessary terms of a contract.

Bd. of Regents of the Univ. System of Ga. v. Ruff, 315 Ga. App. 452, 456 (2) (726 SE2d 451) (2012) (punctuation and footnote omitted; emphasis in original). Because a person may sue the state only “on an express contract,” recovery under an “implied contract” theory is barred. Dept. of Transp. v. Fru-Con Constr. Corp., 206 Ga. App. 821, 825 (3) (426 SE2d 905) (1992).

Read as a whole, the documents at issue here do not show that the parties entered into a signed, written contract. The welcome letter to the Active Decision Guide, which is the only document bearing the signature of the Commissioner of the DCH, opens by welcoming Plan members to open enrollment; refers to “fiscal and regulatory challenges” that may require “innovative solutions to address these challenges”; describes some features of the 2014 Plan; and ends by thanking members “for participating in your SHBP[.]” The welcome letter itself contains no contract terms, however. As for the unsigned Active Decision Guide, by its terms it expressly notes that it is “not a contract,” but is “intended only to highlight the principal benefits of the SHBP plan options.” The Active Decision Guide also provides clear notice that premiums “may be changed at any time by . . . Board resolution[ ] subject to advance notice.” The Plan documents also fail to create an express contract because they do not set out the terms of such contract. As the Active Decision Guide states, “[ajvailability of SHBP options may change based onfederal or state law changes or as approved by the Board of the Department of Community Health (DCH),” and SHBP premiums were “established by the DCH Board and [could] be changed at any time by the Board resolutions subject to advance notice.”

Because Neal failed to produce a writing signed by the SHBP or its representative showing that the State intended to enter into a contract with SHBP members, and because a contract established by conduct is insufficient to prove a waiver of sovereign immunity, the trial court erred when it concluded that plaintiff had proven a waiver of sovereign immunity under the express contract clause of the Georgia Constitution. Bd. of Regents of the Univ. System of Ga. v. Tyson, 261 Ga. 368, 369-370 (1) (404 SE2d 557) (1991) (reversing judgment for plaintiff hospital patient on his contract claim and directing that judgment be entered in favor of the Board of Regents when a consent form signed by that patient, taken with “other parts of her medical record,” did not amount to “signed writings” sufficient to establish a waiver of sovereign immunity); Ruff, 315 Ga. App. at 457 (2) (where plaintiff could not produce a copy of an application for study abroad that was “signed by a representative of the Board of Regents or a representative of the University of Georgia,” there was “no evidence which demonstrated the intent of the Board of Regents to enter into a binding contract” with plaintiff).

2. Relevant Statutes and Regulations. In addition to concluding that Neal had proven an express contract sufficient to waive sovereign immunity, the trial court also held that when read in the context of the statutes and regulations governing the plan, Neal’s enrollment, and her payment of premiums for “enhanced” coverage under it, created a contract with the Department. Specifically, and citing Ga. Comp. R. & Regs. r. 111-4-1-.02, which provides in relevant part that with written notice, “the Commissioner may terminate Coverage for any Group that either contracts for SHBP Coverage or is designated by applicable state law as eligible for such Coverage for failure to remit either Employee or Employer Contributions,” id. at (2) (b) (5) (iii), the trial court concluded that “these rules indicate that SHBP coverage exists for those who contract for [them] or are eligible for [them] pursuant to state law.” This conclusion was also erroneous.

As a public school employee, Neal fell under the second of the categories identified in Ga. Comp. R. & Regs. r. 111-4-1-.02 (2) (b) (5) (iii) — that is, as a person “designated by applicable state law as eligible” for SHBP coverage, and not as a member of a “Group” that “contracts” for coverage, with the result that this regulation does not apply. The term “contract” in this regulatory provision is also meaningless in the context of this lawsuit because the mere use of that term, either by parties or in a regulation, does not meet our Supreme Court’s requirement that a waiver of sovereign immunity must be based on the plain language of a statute: when such “plain language . . . does not provide for a specific waiver of governmental immunity nor the extent of such a waiver,... no waiver can be implied or shown.” Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, 294 Ga. 593, 603 (2) (755 SE2d 184) (2014) (citation omitted). In Kennedy v. Dept. of Human Resources, 286 Ga. App. 222 (648 SE2d 727) (2007), for example, we held that despite the use of the term “contract” throughout a so-called “statement of understanding,” the terms of that document were “too uncertain to form a binding legal contract,” such that a plaintiff had failed to show a waiver of sovereign immunity under the ex contractu exception. Id. at 224 (1).

The trial court and Neal also rely on the fact that the “Definitions” section of the regulations concerning SHBP, which were posted on the SHBP website, includes two provisions describing coverage as a “contract,” as follows:

“Coverage” means the type, Tier, and Option of contract offered to an Enrolled Member pursuant to the Health Insurance Acts. . . .
“Enrolled Member” means the contract holder[,] who maybe the Employee, Retiree, Contract Employee, or Extended Beneficiary who is currently enrolled in Coverage and who has paid the necessary Deduction or Premium for such Coverage.

Ga. Comp. R. & Regs. r. 111-4-1-.01 (18) and (25) (emphasis supplied). Another SHBP regulation posted on the website stated, however, that “[i]n creating the SHBP, neither the Georgia General Assembly nor the Board of Community Health has waived its sovereign immunity” such that “no action . . . can be brought or maintained against the State of Georgia, the Board of Community Health, or any other department or political subdivision of the State of Georgia to recover any money under this Plan.” Ga. Comp. R. & Regs. r. 111-4-1-.10 (3). The same regulation also stated that the Board of Community Health “reserves the right to modify its Benefits, Coverages, and eligibility requirements at any time, subject only to reasonable advance notice to its Members.” Id. at (3) (b).

Isolated appearances of the term “contract” in a regulation, see Ga. Comp.R. &Regs. r. 111-4-1-.01 (18) and (25), cannot overcome the same regulations’ explicit announcement that “in creating the SHBP, neither the Georgia General Assembly nor the Board of Community Health has waived its sovereign immunity,” with the result that “no action[,] either in law or in equity, can be brought or maintained against the State of Georgia, the Board of Community Health, or any other department or political subdivision of the State of Georgia to recover any money under this Plan.” Ga. Comp. R. & Regs. r. 111-4-1-.10 (3). See Upper Chattahoochee Riverkeeper v. Forsyth County, 318 Ga. App. 499, 502 (1) (734 SE2d 242) (2012) (“even if” a regulation’s words “are apparently plain in meaning, they must not be read in isolation and instead, must be read in the context of the regulation as a whole”). Further, and in the absence of any other statute specifically providing for a waiver of sovereign immunity in this context, no language in a regulation promulgated by the executive branch can establish that the General Assembly intended to waive the state’s sovereign immunity when it authorized the Department to establish a health benefits plan for 2014. See Ga. Dept. of Natural Resources, 294 Ga. at 603 (2) (when a statute’s “plain language . . . does not provide for a specific waiver of governmental immunity nor the extent of such a waiver,... no waiver can be implied or shown”).

The trial court appears to have concluded that Neal’s enrollment in the SHBP, and thus her submission to these regulations, amounts to an implied contract sufficient to waive sovereign immunity. As we have previously noted, however, an implied contract does not provide sufficient evidence of the legislature’s intention to waive the State’s sovereign immunity. Fru-Con Constr. Corp., 206 Ga. App. at 825 (3).

Both the trial court and Neal have also cited Alverson v. Employees’ Retirement System of Ga., 272 Ga. App. 389 (613 SE2d 119) (2005), as support for their assertions that Neal’s enrollment in the SHBP established a written contract sufficient to waive sovereign immunity. In Alverson, we noted that sovereign immunity did not apply because plaintiffs were parties to a written contract: a statute establishing a retirement plan for state employees “ ‘becomes a part of an employee’s contract of employment if the employee contributes at any time any amount toward the benefits he is to receive, and if the employee performs services while the law is in effect.’ ” Id. at 391 (1) (b), quoting Parrish v. Employees’ Retirement System of Ga., 260 Ga. 613 (1) (398 SE2d 353) (1990); see also Pulliam v. Ga. Firemen’s Pension Fund, 262 Ga. 411, 413 (1) (419 SE2d 918) (1992) (pension rights are property because they become part of the contract of employment).

We have not seen any cases extending the Alverson rationale beyond issues of payment for services rendered (pursuant to undisputed contracts) and retirement benefits (which are vested property rights) to the specialized context of the voluntary participation in the Plan at issue here. And we have not located any authority declaring health insurance as a property right. See, e.g., Unified Govt. of Athens-Clarke County v. McCrary, 280 Ga. 901, 903-904 (635 SE2d 150) (2006) (reversing trial court’s misconstruction of “level of coverage” as giving plaintiff county employees the right to post-retirement PPO health coverage; employees “never had a vested right to maintain in retirement the precise health-care delivery system by which they received their coverage while employed”). We also find that cases cited by Neal involving employees covered by the Civil Service Act are inapposite because Neal does not allege that she was subject to that Act. See, e.g., Fulton County v. Lord, 323 Ga. App. 384, 389 (1) (746 SE2d 188) (2013) (group of county judicial assistants’ claim for back pay pursuant to Fulton County’s personnel regulations was in the nature of a contract claim); Fulton County v. Andrews, 332 Ga. App. 473, 477 (1) (773 SE2d 432) (2015) (for Civil Service Act employees, a statute establishing a merit-based compensation structure is no different than a statute establishing a retirement plan).

Decided November 20, 2015

Samuel S. Olens, Attorney General, W. Wright Banks, Jr., Deputy Attorney General, Julie A. Jacobs, Robin J. Leigh, Senior Assistant Attorneys General; Stephanie K. Burnham, for appellant.

Parks, Chesin & Walbert, A. Lee Parks, Jr., M. Travis Foust; Hall & Lampros, P. Andrew Lampros, Jeffrey L. Berhold, for appellee.

For all these reasons, Neal has failed to show that she and the Department entered into a signed, written contract such that the ex contractu exception to the State’s sovereign immunity would apply. The trial court thus erred when it denied the Department’s motion to dismiss Neal’s complaint on the ground of the Department’s sovereign immunity from suit as an agency of the State.

Judgment reversed.

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

       The parties do not dispute that the appeal is properly taken, given that the trial court conclusively determined that sovereign immunity did not apply. See Bd. of Regents of the Univ. System of Ga. v. Canas, 295 Ga. App. 505, 507 (1) (672 SE2d 471) (2009).

       See OCGA §§ 45-18-2; 20-2-881; 20-2-911.

       The Summary Plan Description likewise notes that “[t]he Medical Claims Administrator reserves the right to modify the policies, procedures and timeframes” concerning a member’s right to appeal a benefits decision “upon further clarification” from the federal “Department of Health and Human Services and Department of Labor.”

       As noted by the State in its initial brief, and not refutedby Neal, examples of groups that contract for SHBP coverage include counties (OCGA § 45-18-5), governmental authorities (OCGA § 45-18-7.1 etseq.), and critical access hospitals (OCGA § 45-18-7.7), but not individual Plan members.


author: ANDREWS, Presiding Judge.

text:
    A15A1057.
    GLOBAL SHIP SYSTEMS, LLC et al. v. RIVERHAWK GROUP, LLC et al.
    (780 SE2d 697)
   ANDREWS, Presiding Judge.

Global Ship Systems, LLC, GSS Operations, LLC, Robert S. Creech III and the remaining plaintiffs (collectively, the “Global Ship Plaintiffs”) appeal from an order of the Superior Court of Chatham County granting RiverHawk Group, LLC and certain related defendants’ (collectively, the “RiverHawk Defendants”) motion for summary judgment and dismissing the Global Ship Plaintiffs’ complaint for violation of Georgia’s voluntary dismissal statute. See OCGA §§ 9-11-41 (a) (1), (3); 9-12-40. Because the trial court correctly dismissed Global Ship’s third civil action arising from the same set of facts, we affirm.

In 2003 and 2004, Global Ship and Creech sought financing for the purchase of a Savannah, Georgia shipyard. Their search for financing led to Fortress Credit Corporation, a defendant in the first action. Global Ship ultimately secured financing, but it alleged that in December 2005, a series of equipment failures crippled Global Ship’s operations which led to a decline in revenue. Global Ship’s demise culminated in an October 2007 effort by Drawbridge to foreclose on the company’s real and personal property, as well as the shipyard.

In an effort to stop the looming foreclosure of their property, Global Ship, GSS Operations and Creech filed a civil action in the Superior Court of Chatham County on October 31, 2007 (the “first action”). The first action sought: (1) an injunction to stop the pending foreclosure of Global Ship’s equipment and shipyard; (2) an accounting from the defendants “which reflects how the interest, penalties, and fees claimed by the Defendants were calculated”; (3) money damages for breaches of the duties of good faith, fair dealing, and loyalty; and (4) attorney fees. Of note, Global Ship’s complaint in the first action alleged that the defendants exhibited bad faith “given [their] active participation ... in the daily activities of [Global Ship and GSS Operations], their actions in declaring the Loan in default, and accelerating the debt, and their refusal to negotiate in good faith concerning replacement financing.” On November 20, 2007, Global Ship voluntarily dismissed the first action without prejudice.

On November 14, 2008, the Global Ship Plaintiffs filed a second civil action in the Superior Court of Fulton County (the “second action”). Global Ship added SIMS and three individual members of the Global Ship and GSS Operations limited liability companies as party plaintiffs and 16 additional party defendants, including the RiverHawk Defendants. In a sprawling 28-count complaint, the Global Ship Plaintiffs alleged a host of wrongs including breaches of contract, aiding and abetting breaches of contract, breaches of fiduciary duties, conspiracies to breach fiduciary duties, fraud, tortious interference with business relations, and “malicious procurement of breach[es] of fiduciary dut[ies],” all stemming from Global Ship’s efforts to secure original financing and its subsequent collapse. On April 24, 2009, the trial court in the second action entered an order granting in part multiple defendants’ motions for judgment on the pleadings. Ten days later, the Global Ship Plaintiffs voluntarily dismissed the second action.

One day shy of the six-month renewal period, the Global Ship Plaintiffs filed a complaint, identical to the second action, in the Superior Court of Chatham County seeking the same relief it pursued in the second action (the “third action”). The RiverHawk Defendants moved for summary judgment, claiming that the Global Ship Plaintiffs’ third action was barred by OCGA § 9-11-41 (a) (3). The trial court agreed, granting the RiverHawk Defendants’ motion for summary judgment and dismissing the Global Ship Plaintiffs’ complaint. The Global Ship Plaintiffs (hereinafter, “Global Ship”) appeal.

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c). This Court reviews a grant or denial of summary judgment de novo and construes the evidence in the light most favorable to the nonmovant. Citifinancial Svcs. v. Varner, 320 Ga. App. 170 (739 SE2d 477) (2013).

In the sole enumeration of error, Global Ship contends the trial court erred by granting the RiverHawk Defendants’ motion for summary judgment and dismissing Global Ship’s complaint for two reasons: (1) res judicata does not bar the actions of Global Ship’s privies who were not parties to the first action (SIMS, Bennett, Holmes, and Stribling); and (2) res judicata does not bar the third action because the first and second actions were not based upon the same claims. We will address each in turn.

1. First, Global Ship argues that the claims of SIMS, Bennett, Holmes and Stribling are not barred by OCGA § 9-11-41 (a) (3) because they were not parties to the first action; therefore, the third action actually represents these plaintiffs’ second action. Relevant to this argument, OCGA § 9-11-41 (a) (1) (A) provides that “an action may be dismissed by the plaintiff, without order or permission of court, [b]y filing a written notice of dismissal at any time before the first witness is sworn.” Moreover, “[a] dismissal under this subsection is without prejudice, except that the filing of a second notice of dismissal operates as an adjudication upon the merits.” OCGA § 9-11-41 (a) (3). “The plain meaning of OCGA § 9-11-41 is that a plaintiff’s second voluntary dismissal of a case operates as an adjudication on the merits against the plaintiff.” (Punctuation and emphasis omitted.) Dillard Land Investments v. South Florida Investments, 320 Ga. App. 209, 212 (2) (739 SE2d 696) (2013). It follows that “[f]or a second notice of dismissal to operate as an adjudication upon the merits',... it must have been filed by the same plaintiff who filed the first notice of dismissal.” Id. Therefore, in instances in which multiple plaintiffs filed multiple actions and dismissals, the relevant inquiry is whether “any of the Appellants was a plaintiff who voluntarily dismissed both actions.” (Emphasis supplied.) Id. See also Belco Elec. v. Bush, 204 Ga. App. 811, 814 (420 SE2d 602) (1992) (under prior version of OCGA § 9-11-41 (a) (3), fourth action dismissed where identity of plaintiffs was not identical in three prior actions).

Here, the answer to this question is yes. Global Ship, GSS Operations, and Creech were plaintiffs in the first and second actions, each of which was terminated with a voluntary dismissal. Accordingly, Global Ship’s third action is barred by the res judicata effect of OCGA § 9-11-41 (a) (3), and Global Ship’s inclusion of additional plaintiffs does not alter this conclusion. See Dillard Land, 320 Ga. App. at 212 (2). As a result, the trial court did not err in granting the RiverHawk Defendants’ motion for summary judgment on this issue.

2. Next, Global Ship asserts that res judicata does not bar the third action because the first and second actions were not based upon the same claims. As noted above, “[t]he plain meaning of OCGA § 9-11-41 is that a plaintiff’s second voluntary dismissal of a case operates as an adjudication on the merits against the plaintiff.” (Emphasis in original.) Dillard Land, 320 Ga. App. at 212 (2). To that end, “the language of OCGA §§ 9-11-41 (a) and 9-2-61 (a) clearly speaks to the dismissal and renewal of an ‘action’ or a ‘case,’ not a claim within an action where other claims have also been asserted by the same plaintiffs.” (Emphasis in original.) Young v. Rider, 208 Ga. App. 147, 149 (2) (430 SE2d 117) (1993). Indeed, the dismissal of “claims,” or of less than all of a party’s causes of action, is governed by the pleading amendment rules codified at OCGA § 9-11-15. See id. See also Southeastern Hose v. Prudential Ins. Co. of America, 167 Ga. App. 356 (1) (306 SE2d 308) (1983) (defendant’s argument that fourth action precluded by voluntary dismissal “is incorrect if any one of the previous actions is not based on or including the claim presented in the present action”). Finally, OCGA § 9-12-40 is the codification “of Georgia’s common law rule of res judicata” and provides that

[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.

(Emphasis supplied.) See Fowler v. Vineyard, 261 Ga. 454, 458 (3) (b) (405 SE2d 678) (1991).

In this case, we conclude that Global Ship’s third action is barred pursuant to the res judicata effect of OCGA § 9-11-41 (a) (3). In addition to requesting equitable relief, Global Ship’s first action included a claim for money damages from multiple defendants for breaches of the duties of good faith, fair dealing, and loyalty. To support its request for damages, Global Ship’s complaint in the first action alleged that the defendants exhibited bad faith “given [their] active participation... in the daily activities of [Global Ship and GSS Operations], their actions in declaring the Loan in default, and accelerating the debt, and their refusal to negotiate in good faith concerning replacement financing.” In the second and third actions, which were identical to each other, Global Ship again sought money damages for a variety of causes of action, including for breaches of duties consonant with those alleged in the first action, based upon similar factual allegations. See Adams v. Tricord, LLC, 299 Ga. App. 310, 312 (1) (682 SE2d 588) (2009); Southeastern Hose, 167 Ga. App. at 356 (1) (defendant’s argument that fourth action precluded by voluntary dismissal “incorrect if any one of the previous actions is not based on or including the claim presented in the present action”) (emphasis supplied). Moreover, there is a continuity in the defendants named in the first, second and third actions, including the Chatham and Drawbridge defendants. SeeBelco, 204 Ga. App. at 815 (OCGA § 9-11-41 designed “to prevent a plaintiff from repeatedly filing actions for the same claim against any defendant, not only previously named defendants”). Finally, Global Ship has offered no explanation for its failure to bring the causes of action contained in the second and third actions in the first action. See Fowler, 261 Ga. at 458 (3). See also Cartwright v. First Baptist Church of Keysville, 316 Ga. App. 299, 302 (728 SE2d 893) (2012); Adams, 299 Ga. App. at 312 (1) (“The issue is not whether the plaintiffs litigated these claims in the previous action, but whether they could have litigated these claims in the previous action.”).

The binding sinew between each of the three actions is the apparently complex initial financing for, and subsequent failure of, the Global Ship shipyard. In fact, as shown by its allegations, all of Global Ship’s causes of action from each of its three civil actions may be traced to its initial financing and activities associated with its financing. To preserve causes of action from res judicata, “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 pursuant to OCGA § 9-12-40.” Fowler, 261 Ga. at 458 (3). This was not done. Accordingly, we find no error in the trial court’s order granting the RiverHawk Defendants’ motion for summary judgment and dismissing Global Ship’s third action.

Decided November 20, 2015

Mozley, Finlayson & hoggins, Rosemary S. Armstrong, for appellants.

Morris, Manning & Martin, Robert C. Threlkeld, for appellees.

Judgment affirmed.

Miller and Branch, JJ., concur.

       The additional plaintiffs include Southeast Industrial and Marine Services, Inc. (“SIMS”), John G. Bennett, Jane H. Holmes, and James D. Stribling. Bennett, Creech, Holmes and Stribling are individual members of both Global Ship and GSS Operations and are individual shareholders of SIMS.

       The additional RiverHawk Defendants include Nick Anacreonte, Robert J. Cox, Mark T. Hornsby, Brian G. Reynolds, John K. Ross, Chris Weaver, Stephen M. Wheelock, Paradigm Aerospace, LLC, RiverHawk Defense, LLC, RiverHawk Marine, LLC, Maritime Security Strategies, LLC, and Maritime Security Strategies of Florida, LLC. Additional defendants not parties to this appeal include Chatham Investment Fund II, LLC, Chatham Investment Fund QP II, LLC, Chatham Capital Management II, LLC, Chatham Capital Partners, Inc., Chatham Capital Holding, Inc., Drawbridge Special Opportunities Fund, LP, and Drawbridge Special Opportunities GP, LLC.

       Global Ship further alleged that Fortress assigned its rights to Drawbridge Special Opportunities Fund, LP, (“Drawbridge”) which then assigned certain rights to Chatham Capital Management II, LLC, Chatham Investment Fund QP II, LLC, and Chatham Investment Fund II, LLC.

       For additional discussion of the equipment failures, see Global Ship Systems v. Continental Cas. Co., 292 Ga. App. 214 (663 SE2d 826) (2008).

       The defendants in the first action included Fortress Credit Corporation, Drawbridge Special Opportunities Fund, LP, Chatham Capital Management II, LLC, Chatham Investment Fund QPII, LLC, and Chatham Investment Fund II, LLC.

       Global Ship also alleged that Hornsby, a defendant in the second and third actions, participated in securing funding for Global Ship.

       For a listing of the parties in the second action, see footnotes 1 and 2, supra.

       Global Ship’s initial complaint in the second action included 22 separate counts. However, on April 17,2009, Global Ship filed a “First Amended and Restated Complaint” which alleged 28 separate counts. The parties do not contest that Global Ship’s first amended complaint controlled at the time of Global Ship’s voluntary dismissal of the second action.

       Tellingly, Global Ship, GSS Operations and Creech do not argue that their claims in the third action are not barred due to the voluntary dismissals in the first and second actions. Rather, they argue that “[f]or the reasons detailed hereinbelow, their claims are not barred as there is no identity of claims between the [first] action and the [second a]ction.”

       We need not consider whether the individual plaintiffs have a right to bring individual, rather than derivative, actions. See Phoenix Airline Svcs. v. Metro Airlines, 260 Ga. 584, 585 (1) (397 SE2d 699) (1990); Pinnacle Benning v. Clark Realty Capital, 314 Ga. App. 609, 616 (2) (a) (724 SE2d 894) (2012).

       With the exception of the argument addressed in Division 1, supra, Global Ship does not contend that identity of the parties is lacking or that there was no previous adjudication on the merits by a court of competent jurisdiction. See Gunby v. Simon, 277 Ga. 698, 699 (594 SE2d 342) (2004).

       This differs from the corresponding Federal Rule of Civil Procedure, which expressly provides that “if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.” (Emphasis supplied.) Fed. R. Civ. P. 41 (a) (1) (B).

       In fact, Global Ship’s singular acknowledgment of this failure comes from its appellant’s brief in which it states the second action followed “substantial investigation.”

       For an example of an action which would differ from the causes of action presented in Global Ship’s three civil actions discussed in this case, see Global Ship, 292 Ga. App. at 214. Similarly, Southeastern Hose is distinguishable. 167 Ga. App. at 357 (1) (“[A]ctions predicated upon distinct and separate violations of a lease were not based on the same claim.”). See also Gunby, 277 Ga. at 700 (subject matter of different actions were separate surgeries and not identical causes of action).