author: ELLINGTON, Presiding Judge. DILLARD, Judge,

text:
    A15A1359.
    PLANTATION PIPE LINE COMPANY v. STONEWALL INSURANCE COMPANY.
    (780 SE2d 501)
   ELLINGTON, Presiding Judge.

Plantation Pipe Line Company filed this action in the Superior Court of Fulton County against five of its excess liability insurers, including Stonewall Insurance Company. Plantation and Stonewall filed cross-motions for summary judgment on the issue whether Plantation complied with a notice provision in the policy at issue. The trial court granted Stonewall’s motion and denied Plantation’s cross-motion. Plantation appeals, contending the trial court erred in concluding as a matter of law that it failed to give Stonewall timely notice of the occurrence at issue and thereby forfeited coverage under the Stonewall policy. For the reasons explained below, we affirm in part and reverse in part.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law[.]” OCGA § 9-11-56 (c).

Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant [or denial] of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010). When, as in this case, the parties file cross-motions for summary judgment, “each party must show [that] there is no genuine issue of material fact regarding the resolution of [the essential] points of inquiry and that each, respectively, is entitled to summary judgment; either party, to prevail by summary judgment, must bear its burden of proof.” Morgan Enterprises, Inc. v. Gordon Gillett Business Realty, 196 Ga. App. 112 (395 SE2d 303) (1990). See also Wells Fargo Bank v. Twenty Six Properties, LLC, 325 Ga. App. 662 (754 SE2d 630) (2014) (accord). A grant of summary judgment must be affirmed if it is right for any reason, including for an alternate ground that the trial court chose not to address in granting summary judgment, so long as the movant raised the issue in the trial court and the nonmovant had a fair opportunity to respond. Georgia-Pacific, LLC v. Fields, 293 Ga. 499, 504 (2) (748 SE2d 407) (2013); City of Gainesville v. Dodd, 275 Ga. 834, 839 (573 SE2d 369) (2002); Abellera v. Williamson, 274 Ga. 324, 326 (2) (553 SE2d 806) (2001). The record shows the following undisputed facts.

The “occurrence” at issue took place on April 2, 1976, when turbine fuel was found to have leaked from a Plantation pipeline located in Cabarrus County, North Carolina. Plantation repaired the pipeline within 24 hours and compensated the only affected landowner $50 without resorting to insurance. More than thirty years later, on April 3, 2007, one of Plantation’s workers found contaminated soil during maintenance of Plantation’s pipeline, and the contamination was traced to the April 1976 leak. Three years later, on April 8, 2010, Plantation’s claims manager, Mark Winkler, sent written notice to Stonewall that its policy was likely to be implicated by third-party claims arising from the contamination discovered in April 2007. Stonewall denied liability, based, inter alia, on its assertion that Plantation’s written notice was not “prompt” as required by the policy.

The record shows that, at the time the initial leak occurred in Cabarrus County in April 1976, Plantation had $1,000,000 in primary coverage under a comprehensive general liability policy issued by American Reinsurance Company (subject to a self-insured retention of $100,000), and had excess coverage, including $1 million under an umbrella policy issued by Lexington Insurance Company. In late 1975, Stonewall Insurance Company issued an “Excess Umbrella Liability Insurance” policy to Plantation for the period of November 30, 1975, through November 30, 1976, and agreed to indemnify Plantation for loss in excess of the limits of liability of specified underlying insurance. The declarations page shows that the excess umbrella policy was in the amount of “$1,000,000 part of $4,000,000 excess of $1,000,000 excess of underlying insurance.”

A notice provision in the Stonewall policy provided:

When an occurrence takes place which, in the opinion of the insured, involves or may involve liability on the part of the company, prompt written notice shall be given by or on behalf of the insured to the company or its authorized agents.... Failure to so notify the company of any occurrence which at the time of its happening did not, in the opinion of the insured, appear to involve this policy but which, at a later date, appears to give rise to a claim hereunder shall not prejudice such claim provided notice is then given. For purposes of this policy, the word “opinion” shall mean informed opinion or opinion formed on advice of counsel.

In terms of Plantation’s knowledge of the existence of the Stonewall policy, see Division 1 (b), infra, the record shows that in 2004, in connection with other litigation, Plantation hired Risk International Services, Inc. (“RIS”) to reconstruct Plantation’s insurance coverage for the period 1950 to 2005. Among other documents, Plantation provided RIS with an annual insurance summary that had been preparedby Plantation’s legal department each year, including 1976. As one of Plantation’s lawyers deposed, the company understood that “occurrence” policies should never be destroyed because such policies could continue to provide coverage for damages resulting from an occurrence during the policy period, regardless of when contamination was discovered or a third-party claim was asserted against the company. Despite this, at times a policy could not be located in Plantation’s files, but its existence could be inferred from “secondary evidence,” such as the legal department’s annual insurance summary. The annual summary for 1976 showed a “first excess umbrella” layer of coverage provided by “Lexington and other companies” with a total of $5 million, excess of Plantation’s comprehensive general liability coverage of $1 million (including a $100,000 self-insured retention). In 2005, a RIS consultant prepared the requested historical coverage chart for Plantation. Consistent with the 1976 annual summary, the RIS chart showed that, at the time of the original turbine fuel leak in April 1976, Plantation had a total of $5 million in coverage in excess of its primary liability coverage of $1 million; policies from “Lexington & Other Cos.” accounted for $3.5 million of the excess coverage, and two other identified companies accounted for the remaining $1.5 million. According to the RIS consultant, she could not identify those companies other than Lexington accounting for the $3.5 million portion, and she did not have access to those policies.

On June 8,2007, Plantation’s remediation contractor reported to the Environmental Department the discovery of contaminated soil in April 2007, along with the contractor’s analysis that the apparent source of the contamination was the turbine fuel spill from a Plantation pipe that was first discovered on April 2,1976. By letter dated July 18, 2007, the Environmental Department demanded that Plantation obtain a site assessment and remediation plan. Plantation initially proposed a corrective action plan of monitored natural attenuation, that is, a plan without active remediation measures.

In August 2007, Robert Dillard, Plantation’s vice president for risk management and insurance, sent notice of the contamination found in April 2007 and of the Environmental Department’s July 2007 demand for action to Plantation’s primary insurer and to three of its excess carriers, including Lexington. By letters dated February 14, 2008, Dillard advised certain of Plantation’s liability insurers that the company had spent $661,000 in 2007 for investigation and remediation related to the site and for defense costs, and anticipated remedial costs of $200,000 in 2008 and another $1.2 million after 2008 to implement long-term remediation. His estimate, which totaled $2,061 million, was based on Plantation’s plan to utilize “monitored natural attenuation” as the permanent remedy for the site, which was the least expensive means of remediation.

By letter dated October 8, 2009, the Environmental Department advised Plantation that its proposed natural attenuation remedy “would not be considered in lieu of active remediation for soil and groundwater impacts.” Plantation submitted a revised corrective action plan to the Environmental Department on February 15, 2010, and received informal approval of that plan in early March. Jerry Aycock, Plantation’s director of remediation and emergency response, deposed that only then could Plantation develop a realistic estimate of the cost of the permanent remedy for the site, and he prepared a new remediation cost projection, dated March 18, 2010.

In February 2010, about the same time Aycock was revising Plantation’s remediation cost projection in connection with the occurrence at issue in this case, Plantation’s coverage counsel asked Plantation’s former lawyers at the firm of Hunton & Williams to search its archives for documents related to another spill case, and those lawyers discovered the Stonewall policy among other documents the firm had been holding in its archives since the early 1990s. By letter dated February 16, 2010, Plantation provided RIS with documents found in the Hunton & Williams archives, including the Stonewall policy, and asked for an updated coverage chart. The updated chart shows a total of six carriers, including Stonewall, providing a total of $4 million in coverage as a second excess layer to a first excess layer of $1 million provided by Lexington. Finally, Plantation sent Stonewall notice on April 8, 2010, that its policy was likely to be implicated, citing, not remediation costs, but third-party claims.

1. Plantation contends that, as a matter of law, its April 8, 2010 notice was reasonably prompt under the circumstances, or at least that the evidence presents a material question for the finder of fact.

Under Georgia law, “[w]hether an insured gave an insurer timely notice of an event or occurrence under a policy generally is a question for the factfinder.” (Footnote omitted.) State Farm Fire and Cas. Co. v. Walnut Avenue Partners, 296 Ga. App. 648, 651 (2) (675 SE2d 534) (2009).

An insured often may be able to present evidence of excuse or justification for the delay. Whether the excuse or justification was sufficient and whether the insured acted diligently in giving the notice are generally questions of fact, to be determined by the jury, according to the nature and circumstances of each individual case. Nevertheless, the facts and circumstances of a particular case may render an insured’s delay in giving notice of an occurrence to his insurer unjustified and unreasonable as a matter of law. Conversely, if an ordinarily prudent person acting reasonably would not conclude that an incident would give rise to a possible claim, a court can determine as a matter of law that the insured was justified in not notifying the insurer of the incident.

(Punctuation and footnotes omitted.) Id.

Whether notice to an insurer is timely under a policy depends, in part, on the event that triggers the duty of notice. In contrast to an insured’s notice obligation under a primary liability policy, which may be triggered for example by an occurrence that may give rise to the insured’s liability to another, under an excess policy like the one at issue, the notice obligation is triggered by the insured’s assessment regarding the likelihood that the monetary amount for which the insured may be liable will exceed the ceiling of any underlying primary policy or lower tier of excess coverage. Lumbermens Mut. Cas. Co. v. Plantation Pipeline Co., 214 Ga. App. at 25 (1).

(a) In arguing that its April 2010 notice was reasonably prompt under the circumstances, Plantation contends, inter alia, that it did not reasonably believe that its losses from the occurrence would likely exceed $2 million (the “attachment point” of Stonewall’s policy) until early March 2010, just weeks before it provided notice to Stonewall, when it became “reasonably certain” of the scope of the corrective action plan that would receive government approval. This argument is belied by the record. As detailed above, Plantation estimated as early as February 2008, when it still apparently believed that the attachment point of all of its excess insurance policies was $1 million, that its remediation and defense costs for the contamination would exceed $2 million, even if the Environmental Department would ultimately approve the least costly permanent remedy (natural attenuation), and it gave notice of the occurrence to certain of its excess carriers then, in February 2008.

(b) In arguing that its April 2010 notice to Stonewall was reasonably prompt under the circumstances, Plantation also contends that, despite reasonable diligence in searching for applicable policies, it was unaware of the Stonewall policy until February 2010 when it “fortuitously” discovered the policy among documents that had been in storage since the early 1990s in the archives of its former lawyers. Plantation contends that, “where an insured exercises reasonable diligence in attempting to reconstruct its insurance coverage, its failure to provide notice until a missing policy has been located or an unknown insurer- has been identified should not result in a forfeiture of coverage.”

Setting aside Plantation’s premise that an insured’s purported inability to locate an applicable policy sooner can under the right circumstances be deemed to excuse a delay in providing required notice of an occurrence, we conclude that under the circumstances presented here Plantation failed as a matter of law to give Stonewall timely notice of the occurrence at issue. As detailed above, Plantation’s executives and lawyers understood that contamination attributable to its business activities could be discovered decades after a leak and that, consequently, occurrence policies should never be destroyed. Its annual insurance summaries dating back to the original leak in April 1976 referred to “other” excess carriers that provided a total of $5 million in coverage. And, when Plantation pressed the Hunton & Williams firm to search its archives in February 2010, the Stonewall policy was discovered; there is no evidence that the policy could not have been thus discovered any earlier. We conclude that the record fails to present a material question of fact regarding whether Plantation’s notice to Stonewall, more than two years after Plantation determined that its liability exposure would likely exceed the ceiling of the underlying policies, was reasonably prompt under the circumstances. Accordingly, the trial court did not err in concluding as a matter of law that Plantation failed to give Stonewall timely notice of the occurrence at issue.

2. Plantation contends that, even if it failed to provide Stonewall reasonably prompt notice of the claim, as we have held in Division 1, supra, such failure does not negate coverage under the policy, because the policy did not expressly make prompt notice a condition precedent to coverage and because Stonewall was not prejudiced by the delay in notice.

Under Georgia law, an insurance policy is construed, if possible, to avoid forfeitures and to provide coverage, so as to advance the beneficial purposes intended to be accomplished by the insurance contract. Grange Mut. Cas. Co. v. Snipes, 298 Ga. App. 405, 408 (2) (680 SE2d 438) (2009); Gilbert v. Southern Trust Ins. Co., 252 Ga. App. 109, 112 (2) (555 SE2d 69) (2001). See also Hoover v. Maxum Indent. Co., 291 Ga. 402, 407 (3) (730 SE2d 413) (2012) (“Georgia courts do not favor forfeitures in construing insurance contracts.”) (citation and punctuation omitted). The ordinary principle of contract law, that a party seeking to recover under a contract must perform any applicable condition precedent before the contract becomes absolute and obligatory upon the other party, applies to contracts of insurance. Lankford v. State Farm Mut. Auto. Ins. Co., 307 Ga. App. 12, 14 (703 SE2d 436) (2010); Blackburn v. State Farm Fire & Cas. Co., 174 Ga. App. 157, 158 (329 SE2d 284) (1985). Therefore, a forfeiture of insurance coverage may result when an insured fails to satisfy a condition precedent to coverage under the contract.

Pertinently to this case, a notice provision in an insurance contract that is

expressly made a condition precedent to coverage is valid and must be complied with, absent a showing of justification. Where an insured has not demonstrated justification for failure to give notice according to the terms of the policy, then the insurer is not obligated to provide either a defense or coverage.

(Citation and punctuation omitted.) Eells v. State Farm Mut. Auto. Ins. Co., 324 Ga. App. 901, 903 (1) (a) (752 SE2d 70) (2013). Furthermore, when specified notice is a valid condition precedent to coverage, an insurer is not required to show actual harm from a delay in notice in order to justify a denial of coverage based on such failure of a condition precedent. It follows that, conversely, where a notice provision is not expressly made a condition precedent to coverage of the insurance contract, an insured’s failure to comply with the notice provision will result in a forfeiture of coverage only if the insurer demonstrates that it was prejudiced by the insured’s failure.

In keeping with the desire of the law to avoid forfeitures of coverage, the general rule is that a notice provision in an insurance policy is only considered a condition precedent to coverage if “it expressly states that a failure to provide such notice will result in a forfeiture of the insured’s rights or uses language which otherwise clearly expresses the intention that the notice provision be treated as a condition precedent.” Resource Life Ins. Co. v. Buckner, 304 Ga. App. 719, 726-727 (1) (698 SE2d 19) (2010). Where policy language “does nothing more than require the insured to give notice of a particular event, [it] is insufficient to create a condition precedent.” (Citations and punctuation omitted.) Id. at 727 (1).

The notice provision in the Stonewall policy at issue, quoted above, does not expressly stipulate that compliance with the notice provision is a condition precedent to coverage. See Resource Life Ins. Co. v. Buckner, 304 Ga. App. at 726-727 (1). In addition, the policy does not even contain a general provision that no action will lie against Stonewall unless, as a condition precedent thereto, Plantation shall have fully complied with all terms of the policy. See id. In arguing that the required notice is a condition precedent to coverage, Stonewall points to language contained on the declarations page to the effect that Stonewall “agrees with [Plantation], in consideration of the premium to be paid and subject to the limits of liability, exclusions, conditions, and other terms of this policy, to provide insurance” as set forth in the attached forms and endorsements. We conclude that this general, introductory language was insufficient to make compliance with the notice provision a condition precedent to coverage. See Resource Life Ins. Co. v. Buckner, 304 Ga. App. at 727 (1). Accordingly, the trial court erred in concluding that the Stonewall policy expressly made compliance with the notice provision a condition precedent to coverage and in ruling on that basis that Stonewall was not required to show prejudice.

Stonewall contends that it was prejudiced by Plantation’s delayed notice in that “Plantation unilaterally investigated the Site and initially submitted a remedy that was ultimately rejected in favor of a far more expensive cleanup that Stonewall is now being asked to fund.” Contrary to what is stated in the dissent, we recognize that excess carriers, like primary carriers, are entitled to “timely” investigate claims for which they may ultimately be held liable. But the dissent fails to acknowledge that, as explained in Lumbermens Mut. Cas. Co. v. Plantation Pipeline Co., 214 Ga. App. at 25 (1), and reaffirmed in Plantation Pipeline Co. v. Royal Indem. Co., 245 Ga. App. at 27-28 (1), an insurer’s notice obligation under an excess policy is triggered by a different event (that is, the insured’s assessment regarding the likelihood that its exposure will exceed the ceiling of the underlying primary policy) than triggers its notice obligation under a primary policy, most commonly, the insured’s actual or constructive knowledge of an occurrence giving rise to potential liability. The events that trigger an obligation to provide notice to a primary carrier and to an excess carrier may occur simultaneously or, at the other extreme, may be separated by many decades, as has been repeatedly illustrated in petroleum spill cases. Thus, although an excess carrier is entitled to investigate a claim “timely,” relative to the trigger date of the insured’s notice obligation, it will not necessarily be entitled to an opportunity to investigate in the early days following an occurrence that gives rise to an insured’s potential liability, as a primary carrier may be. This reality affects the ways in which a delay in notice may harm an excess insurer, and, therefore, it must inform the application of precedents involving primary insurers in cases, like this one, that involve excess insurers.

Given that an excess insurer will often be entitled to notice at a later time than a primary carrier would be, and an initial investigation may already be under way, the bare assertion that Stonewall was deprived of an opportunity to investigate is insufficient to carry its burden on summary judgment of showing prejudice as a matter of law. Moreover, it seems doubtful that Stonewall was harmed by Plantation’s having proposed a remedy that, if accepted by the North Carolina Department of Environmental Health and Natural Resources (the “Environmental Department”), could have reduced or even eliminated Stonewall’s exposure as an excess insurer for the contamination discovered in April 2007. On the record that was before the trial court, we conclude that Stonewall failed to identify evidence establishing that as a matter of law it was prejudiced by Plantation’s failure to provide reasonably prompt notice of the occurrence. Because of this, and because the policy did not expressly make prompt notice a condition precedent to coverage, Plantation’s delay in notice, as discussed in Division 1, supra, does not as a matter of law preclude coverage under the policy.

Based on all the foregoing, we conclude that the trial did not err in denying Plantation’s motion for summary judgment but erred in granting Stonewall’s cross-motion.

The assertion in the dissent that our decision in this case renders every timely notice provision in every excess liability policy in Georgia utterly meaningless cannot go unanswered. Therefore, we take pains to emphasize that we are certainly not suggesting that excess carriers are never entitled to timely notice and are never prejudiced by untimely notice on the basis that their liability may not arise until well after the original occurrence giving rise to the claim, and this case should not be cited as so holding. A more than two-year delay in giving notice may very well prejudice an excess carrier. Indeed, Stonewall may yet be able to establish prejudice in this case — but it must do so with particularized evidence of harm. An assertion by counsel in a brief will not suffice, nor are we authorized to presume that a delay of over two years is inherently prejudicial.

Judgment affirmed in part and reversed in part.

Barnes, P. J., Phipps, P J., and McFadden, J., concur. Ray, J., concurs in judgment only. Dillard and McMillian, JJ., concur in judgment only in Division 1 and dissent in Division 2.

DILLARD, Judge,

concurring in part and dissenting in part.

I concur in judgment only as to Division 1 because I do not agree with all that is said by the majority in that particular division of the opinion. And for the reasons that follow, I respectfully dissent as to Division 2 because the trial court did not err in granting summary judgment to Stonewall.

As noted by the majority, Plantation failed to notify Stonewall of its potential liability for over two years and its sole excuse for this lengthy delay is that it was unaware that the insurance policy existed until 2010, when the policy was discovered among other documents provided by its former attorneys. Suffice it to say, this excuse is a nonstarter. Indeed, Georgia courts have long held that mere ignorance of the existence of an insurance policy or its terms does not excuse an insured from complying with a timely notice provision. And this makes perfect sense because holding otherwise would mean that any insured could be excused from complying with the terms of an insurance policy merely by claiming (or feigning) ignorance of the policy’s existence or its terms. It is eminently reasonable, then, for an insurance company to presume that an insured is aware of the insurance policy’s existence as well as its terms.

Nevertheless, the majority holds that, even though Plantation’s 26-month delay in providing notice to Stonewall of its potential liability was unreasonable and unjustifiable as a matter of law, Plantation may still be excused for its complete failure to comply with the timely notice provision because it was not an express condition precedent to coverage and Stonewall has not shown that it was prejudiced. I respectfully disagree.

Assuming, arguendo, that (1) the policy’s timely notice provision is not an express condition precedent to coverage and (2) the law actually requires Stonewall to demonstrate that it was prejudiced by Plantation’s failure to comply with this provision, it is ultimately of no consequence because Stonewall has easily shown that it was in fact prejudiced. It simply strains credulity to suggest, as the majority does, that Stonewall’s “bare assertion” that it was deprived of the opportunity to timely investigate Plantation’s claim is insufficient to show prejudice, while at the same time acknowledging that the ability to investigate claims in a timely manner is the very purpose of a timely notice provision. To the contrary, an insured’s failure to provide its insurer with timely notice of the insurer’s potential liability under the policy will, in many cases, prejudice the insurer’s rights under the policy. This is especially true in this case, where Plantation failed to notify Stonewall of its potential liability under the policy for over two years — which, in my view, is inherently prejudicial. Moreover, as Stonewall explains in its appellate brief, Plantation’s inexcusable delay in notifying Stonewall of its potential liability deprived the company of its ability to “associate into defense decisions.” Specifically, Plantation “unilaterally investigated the Site and initially submitted a remedy that was ultimately rejected in favor of a far more expensive cleanup that Stonewall is now being asked to fund.” This is prejudice, plain and simple.

In holding that Stonewall has failed to show prejudice, the majority makes much of the fact that primary insurance carriers are often entitled to notice of their potential liability much earlier than excess liability carriers. This is, of course, true, but entirely beside the point. The bottom line is that, regardless of when the triggering event occurs, an insurer — be it a primary or excess insurance carrier — is entitled to timely notice of its potential liability if the policy so provides. And the majority concedes as much in Division 1 (a) of its opinion, expressly holding that Plantation’s contention that its notice was reasonably prompt was belied by the record. Nevertheless, in Division 2 of its opinion, the majority inexplicably suggests that excess carriers are never entitled to timely notice and are never prejudiced by untimely notice because their liability may not arise until well after the original occurrence giving rise to the claim — a holding that renders every timely notice provision in every excess-liability policy in Georgia utterly meaningless. This is not the law in Georgia. Although an excess carrier may not be able to investigate the actual occurrence or accident giving rise to the claim as early as a primary carrier, an excess carrier is nonetheless entitled to timely investigate whether the loss is such that it is even liable under the terms of its policy.

Decided November 20, 2016

Reconsideration denied December 15, 2015

Fellows LaBriola, Shattuck Ely, for appellant.

Wesley Holladay, Nanette L. Wesley, for appellee.

Here, it is undisputed that the triggering event occurred in February 2008 and that Plantation’s excuse for the late notice was unjustified and unreasonable. And nothing in this dissent remotely suggests that the timely notice provision in Stonewall’s policy was triggered in 1976 at the time of the original oil leak. As a result, I fail to see how the difference between when the triggering events occur for primary and excess liability carriers has any bearing on the outcome of this appeal.

In sum, if the purpose of a timely notice provision in an excess-liability policy is not to allow the insurer to expeditiously investigate and defend against claims of potential liability, then it is not entirely clear what the purpose of such a provision would be. Simply put, Stonewall was undoubtedly prejudiced when Plantation failed to give it notice of its potential liability for over two years after the claim arose. I respectfully dissent, then, from Division 2 of the majority opinion because I would affirm the trial court’s grant of summary judgment to Stonewall.

I am authorized to state that Judge McMillian joins in this opinion.

       Originally, Plantation also appealed from the ruling granting the motion for summary judgment filed by another excess insurer, First State Insurance Company, and denying its cross-motion. Plantation notified this Court that the parties had entered into a final settlement agreement, and we granted Plantation’s motion to withdraw its appeal as to First State on June 17, 2015.

       Berkshire Hathaway Specialty Insurance Company is Stonewall’s successor.

        See Lumbermens Mut. Cas. Co. v. Plantation Pipeline Co., 214 Ga. App. 23 (447 SE2d 89) (1994).

       See Plantation Pipeline Co. v. Royal Indem. Co., 245 Ga. App. 23, 25 (1) (537 SE2d 165) (2000) (accord); Townsend v. Nat. Union Fire Ins. Co., 196 Ga. App. 789 (397 SE2d 61) (1990) (accord); Caldwell v. State Farm Fire & Cas. Ins. Co., 192 Ga. App. 419, 420-421 (2) (385 SE2d 97) (1989) (accord); Southern Trust Ins. Co. v. Clark, 148 Ga. App. 579, 582 (1) (251 SE2d 823) (1978) (accord); Richmond v. Ga. Farm Bureau Mut. Ins. Co., 140 Ga. App. 215, 220 (1), 222 (3) (231 SE2d 245) (1976) (accord).

       As one treatise has explained,
      [t]he insured must,... in order to excuse late notice under the excess policy, be able to demonstrate that it would not have been possible reasonably to have anticipated that the claim or potential claim might be for an amount of money sufficient to involve excess liability. Therefore, an insured who has actual notice that a claim is for an amount in excess of the primary policy’s limits is obligated to put the excess carrier on notice. If a notice provision is written so as to be activated only if it is reasonably likely that the excess policy’s limits will be reached, an insured should be allowed to consider its potential liability in deciding whether notice is required.
      (Footnotes omitted.) Allan D. Windt, 1 Insurance Claims and Disputes § 1:3 (6th ed.). See also Plantation Pipeline Co. v. Royal Indent. Co., 245 Ga. App. at 27-28 (1) (acknowledging that the holding in cases involving an insured’s notice obligation under a primary liability policy is not controlling in a case involving an excess policy, where the notice obligation is triggered by the insured’s assessment of the likelihood that the monetary amount for which it may be liable will exceed the ceiling of the primary policy); Employer Reinsurance Corp. v. Laurier Indem. Co., 2007 WL 1831775 (Case No. 8:03-CV-1650-T-17MSS,M.D.Fla., decided June 25, 2007) (“Courts interpreting Georgia law in the context of excess insurance policies have held that there is a difference between policies which contain notice provisions triggered by the occurrence of an underlying loss and policies which contain notice provisions triggered instead by the insured’s own assessment of the likelihood that the amount of the underlying loss will exceed a particular ceiling.”) (citations omitted); J. Stephen Berry et al., Ga. Property & Liability Insurance Law, §§ 6:2, 6:3 (updated August 2015) (explaining that the notice provision in a typical primary commercial liability policy is triggered by the insured’s actual or constructive knowledge of an occurrence giving rise to potential liability).

       As Stonewall points out, although the parties now agree that the attachment point of the Stonewall policy was $2 million, Plantation’s 1976 annual summary and RIS’s 2005 coverage chart lumped Lexington and the other excess carriers together, suggesting that the attachment point for the “other companies” was $1 million.

       See OneBeacon America Ins. Co. v. Catholic Diocese of Savannah, 477 Fed. Appx. 665, 672 (IV) (B) (11th Cir. 2012) (In a case where it was undisputed that an insurer’s liability policies’ notice provisions were expressly made conditions precedent to coverage, and the insured provided notice of an occurrence, the filing of a third-party liability claim, to its liability carrier 21 months after learning of the suit, the insured argued that the delay should be excused because it had been unable to locate the policies any earlier. Implicitly accepting the argument that an inability to locate a policy can under Georgia law constitute justification for a delay in notice, the appellate court concluded that the insurer was nonetheless entitled to summary judgment because the evidence of the insured’s diligence in providing notice to the insurer, its attorney’s affidavit, lacked critical detail regarding when the insured contacted its insurance agent, what the agent said, when the policy was discovered, what steps the insured took to locate other policies, when the agent told the insured about the policies at issue, and how quickly after discovering the policy the insured notified the insurer.); see also Newberry v. Cotton States Mut. Ins. Co., 242 Ga. App. 784, 785-786 (2) (531 SE2d362) (2000) (“The fact that an insured did not know the policy might afford coverage under a given factual situation may provide justification for the failure to give notice. Where there is a conflict in the evidence on the issue of the insured’s lack of knowledge of coverage, a jury must determine the question.” In a case where the insured gave his homeowner’s insurance carrier notice that he had been involved in a fight at a party given by his wife’s employer 11 months after the event but just 17 days after he received service of the woman’s tort action, there was evidence that the insured knew the plaintiff had been pursuing a worker’s compensation claim and that he had no idea that the suit against him might be covered under his homeowner’s insurance until he was served with her suit and a lawyer he consulted advised him to notify his homeowner’s insurance carrier. The insurer was not entitled to summary judgment on it late-notice defense.) (citations and punctuation omitted); Milwaukee Ins. Co. v. Powell, 108 Ga. App. 12, 16-19 (6) (132 SE2d 95) (1963) (In a case where the insured failed to file a written proof of loss within sixty days, which was a condition precedent to a recovery under the fire insurance policy at issue, the plaintiff argued that her failure to comply with the provision was justified because the policy had been destroyed in the fire and the insurance agent evaded inquiries about the policy and she had been unable to identify the carrier any earlier. Implicitly accepting the argument that an inability to locate a policy can constitute justification for a failure to file a written proof of loss, the appellate court concluded that the insurer was nonetheless entitled to judgment as a matter of law, inter alia, because there was no evidence explaining why the information that the plaintiff eventually received could not have been obtained earlier in the same way and, even after the identity of the carrier was learned, the plaintiff did not attempt to file a proof of loss as required by the policy.). But see Protective Ins. Co. v. Johnson, 256 Ga. 713, 713-714 (1) (352 SE2d 760) (1987) (Where a claimant argued that his 17-month delay in filing a claim with his employer’s insurer should be excused, inter alia, because he did not know the name of his employer’s insurer and he was unaware that his employer had insurance on the truck in which he was injured, the insurer was entitled to summary judgment because “[tjhere [was] no evidence, indeed, not even an assertion, that [the claimant’s] ignorance of the terms of the subject insurance policy was due to any fraud or overreaching on the part of [the insurer] or its agents” and “[t]he law requires more than just ignorance, or even misplaced confidence, to avoid the terms of a valid contract.”) (citation and punctuation omitted); Allstate Ins. Co. v. Walker, 254 Ga. App. 315, 316-317 (1) (562 SE2d 267) (2002) (The fact that the insureds did not know their auto policy might afford coverage for theft of the vehicle as a matter of law did not excuse their delay in giving timely notice of the occurrence.); Townsend v. Nat. Union Fire Ins. Co., 196 Ga. App. at 789-790 (The claimant’s 70-month delay in notifying his employer’s insurance carrier of his injury while driving the truck was unreasonable as a matter of law and was not excused by his being unaware that he might be entitled to no-fault benefits and his not knowing the name of the carrier that insured his employer’s truck.); Snow v. Atlanta Intl. Ins. Co., 182 Ga. App. 1, 2 (354 SE2d 644) (1987) (The insured’s delay in notifying one of two insurers of his trucking activities about an accident that resulted in another’s death was unexcused as a matter of law, although he claimed he did not know what company or companies carried the insurance, because his employment contracts provided that the trucking companies would provide insurance and he failed to inquire as to the requirements of any insurance policy.); Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga. App. 697, 706-707 (3) (172 SE2d 159) (1969) (Where an insured argued that its failure to provide its insurer with a written proof of loss as required by the policy should be excused because the insured did not have a copy of the policy, the insurer was entitled to summary judgment because “[i]f the policy was lost or destroyed it was by [the insured’s] negligence and through no fault of [the insurer].”).

        Protective Ins. Co. v. Johnson, 256 Ga. at 713-714 (1) (unexcused delay of 17 months in giving required notice precluded coverage); Allstate Ins. Co. v. Walker, 254 Ga. App. at 316-317 (1) (unexcused delay of 11 months in giving required notice precluded coverage); Snow v. Atlanta Intl. Ins. Co., 182 Ga. App. at 2 (unexcused delay of 10 months in giving required notice precluded coverage); see also OneBeacon America Ins. Co. v. Catholic Diocese of Savannah, 477 Fed. Appx. at 672 (IV) (B) (unexcused delay of 21 months in giving required notice precluded coverage).

       Cf. Lumbermens Mut. Cas. Co. v. Plantation Pipeline Co., 214 Ga. App. at 24-26 (1) (The insured’s notice of an occurrence to its excess carrier was timely as a matter of law, where it provided notice within days of a demand from the North Carolina Department of Environmental Health and Natural Resources to carry out a remedial action plan for contamination traced to a leak fifteen years earlier, and where during that interval the insured had expended less than 0.7 percent of the excess carrier’s floor of coverage of $3 million in remediating the site and compensating the affected property owner; under the circumstances, it was objectively unlikely, before the Environmental Department’s demand, that the excess insurer’s policy would become involved.); Evanston Ins. Co. v. Stonewall Surplus Lines Ins. Co., 111 F3d 852, 862 (II) (B) (11th Cir. 1997) (applying Georgia and Wisconsin law) (The insured’s notice was timely as a matter of law where the insured evaluated the claim based upon advice from competent attorneys representing both itself and other excess insurers and none believed that the claims at issue might exceed the threshold of coverage.).

        Glass v. Stewart Title Guaranty Co., 181 Ga. App. 804, 805 (1) (354 SE2d 187) (1987) (“In the case of a condition precedent, the condition must be performed before the contract becomes absolute and obligatory upon the other party.”) (citations and punctuation omitted).

        See Lankford v. State Farm Mut. Auto. Ins. Co., 307 Ga. App. at 14 (accord); Kay-Lex Co. v. Essex Ins. Co., 286 Ga. App. 484, 488 (1) (a) (649 SE2d 602) (2007) (accord); Federated Mut. Ins. Co. v. Ownbey Enterprises, 278 Ga. App. 1, 3 (627 SE2d 917) (2006) (accord); Plantation Pipeline Co. v. Royal Indem. Co., 246 Ga. App. at 28 (2) (accord); see also Parris v. Great Central Ins. Co., 148 Ga. App. 277, 278 (1) (251 SE2d 109) (1978) (An insured was not precluded from maintaining suit against its insurer and consequently recovering under the policy, solely by reason of failing to submit a proof of loss within the time required by the policy, because the policy contained no express stipulation to the effect that failure to submit a proof of loss within the time allowed would result in forfeiture, nor was there an express stipulation in the policy that furnishing a proof of loss within the time specified was a condition precedent to the bringing of an action against the insurer.); OneBeacon America Ins. Co. v. Catholic Diocese of Savannah, 477 Fed. Appx. at 672 (IV) (B) (Under Georgia law, if a notice provision is expressly made a condition precedent to coverage under the policy at issue, and the insured unreasonably and without justification fails to comply with the notice provision in a timely manner, the insurer is not obligated to provide either a defense or coverage.).

        Southeastern Express Systems, Inc. v. Southern Guar. Ins. Co., 224 Ga. App. 697, 701 (482 SE2d 433) (1997) (The insurer was not required to show it was prejudiced by the insured’s failure to give notice, in a timely and reasonable manner, that it had been sued and to deliver the suit papers to the insurer as required by the contract because “the notice requirement was a condition precedent under the policy.”) (citations omitted); Caldwell v. State Farm Fire & Cas. Ins. Co., 192 Ga. App. at 421 (2) (accord); Diggs v. Southern Ins. Co., 172 Ga. App. 37, 38 (321 SE2d 792) (1984) (accord); Richmond v. Ga. Farm Bureau Mut. Ins. Co., 140 Ga. App. at 222 (3) (Because the notice requirement was expressly made a condition precedent to the insurer’s coverage or liability, there was no need for the insurer to prove it was prejudiced by the insured’s failure to give timely notice.); Wolverine Ins. Co. v. Sorrough, 122 Ga. App. 556, 561-562 (3) (177 SE2d 819) (1970) (accord).

       See JNJ Foundation Specialists, Inc. v. D. R. Horton, Inc., 311 Ga. App. 269, 275-276 (2) (b) (717 SE2d 219) (2011) (Although an insurer is “not required to show prejudice resulting from an alleged failure to forward suit papers timely, the insurer’s failure to demonstrate prejudice may be considered” in determining whether the insured breached the contract by failing to immediately forward to the insurer copies of a lawsuit; the insurer was not entitled to summary judgment on its late-notice defense where there was no evidence that it did not receive notice when its insured received notice.) (footnote and emphasis omitted); Continental Cas. Co. v. Parker, 161 Ga. App. 614, 617-618(2) (288 SE2d 776) (1982) (Where the insured gave oral notice to his insurance agent and was informed that he was not covered, and there was no evidence of any prejudice to the insurer in defending the case because of the insured’s failure to give written notice or forward the pleadings in the case, the insurer was not entitled to summary judgment on its late-notice defense.); Leventhal v. American Banker Ins. Co., 159 Ga. App. 104, 108 (283 SE2d 3) (1981) (Where an action against an employer as named insured is based on the alleged negligence of an employee also covered by the policy, the employee “does not forfeit coverage by failure to make an immediate forwarding of suit papers if the circumstances show (1) that the insurer has in fact received timely notice of the accident, the claim and pendency of the suit from the named insured; (2) the defense of the named insured involves, at least collaterally, a defense of the employee insured as against a charge of respondeat superior, and (3) the insurer fails to carry the burden of showing that its defense was prejudiced in any manner by the failure of the employee to make a timely forwarding of suit papers.”). We note that in at least one case we rejected prejudice to the insurer as a factor without expressly limiting that holding to circumstances where timely notice is expressly made a condition precedent to coverage, and that ruling has been broadly paraphrased in some federal court decisions. See Townsend v. Nat. Union Fire Ins. Co., 196 Ga. App. at 789-790 (“Prejudice or the lack thereof to the insurer is not a factor in assessing whether or not the delay in notice is excusable and the ultimate determination of its being reasonable, i.e., ‘as soon as practicable.’ ”) (citations and punctuation omitted); see, e.g., Canadyne-Georgia Corp. v. Continental Ins. Co., 999 F2d 1547, 1557 (11th Cir. 1993) (“The Georgia Court of Appeals repeatedly confirms the rule in Georgia that an insurer need not prove prejudice in order to avoid paying benefits to the insured who fails to comply with the notice provision in the policy.”) (citing Townsend v. Nat. Union Fire Ins. Co.). The Eleventh Circuit Court of Appeals’ interpretation of Georgia law has been questioned, however, given that Townsend v. Nat. Union Fire Ins. Co. “provides very little support in view of the fact that the policy language is not set out, and the court does not specifically state whether the notice requirement was a mere ‘condition’ or a ‘condition precedent.’ ” Atlanta Gas Light Co. v. Aetna Cas. & Sur., Case No. 1:91-cv-1803-RLV, 1993 WL 545704 (N.D. Ga., decided October 8, 1993), vacated sub nom. Atlanta Gas Light Co. v. Aetna Cas. & Sur. Co., 68 F3d 409 (11th Cir. 1995). We decline to follow the Eleventh Circuit Court of Appeals’ overly broad reading of Townsend v. Nat. Union Fire Ins. Co.

       Cf. Bituminous Cas. Corp. v. J. B. Forrest & Sons, Inc., 132 Ga. App. 714, 716-718 (1) (209 SE2d 6) (1974) (citing “condition precedent” language in a no-action clause and concluding that timely notice was a condition precedent to coverage); Wolverine Ins. Co. v. Sorrough, 122 Ga. App. at 560 (3) (accord); OneBeacon America Ins. Co. v. Catholic Diocese of Savannah, 477 Fed. Appx. at 668 (applying Georgia law) (accord).

       See Hathaway Dev. Co., Inc. v. Am. Empire Surplus Lines Ins. Co., 301 Ga. App. 65, 68 (1) (b) (686 SE2d 855) (2009), aff’d, 288 Ga. 749 (707 SE2d 369) (2011) @n regard to a primary liability carrier, “[t]he purpose of notice is to enable the insurer to inform itself promptly concerning the accident, so that it may investigate the circumstances, prepare for a defense, if necessary, or be advised whether it is prudent to settle any claim arising therefrom.”) (citations and punctuation omitted); Plantation Pipeline Co. v. Royal Indem. Co., 245 Ga. App. at 27 (1) (In regard to a primary liability carrier, “[t]he purpose of a notice provision in a policy of insurance is to allow the insurer to investigate promptly the facts surrounding the occurrence and to prepare a defense or determine whether a settlement is feasible, while the facts are still fresh and the witnesses are still available.”) (citation and punctuation omitted); Richmond v. Ga. Farm Bureau Mut. Ins. Co., 140 Ga. App. at 221 (3) (accord); Bituminous Cas. Corp. v. J. B. Forrest & Sons, Inc., 132 Ga.App. at 717 (1) (In regard to a primary liability carrier, the purpose of a notice provision is “to enable the insurer to begin immediately an investigation of the facts and circumstances for determining whether liability might be present and whether a settlement of the claim should he attempted; to get the facts while they were fresh and available in the minds of the parties and such witnesses as might he available; to obtain pictures, diagrams, etc. which might assist in showing how the occurrence happened and the extent of any physical damage done.” With the passage of time, witnesses may disappear by moving away, or the status of damaged property may be changed.).

       See discussion in Division 1, supra.

       As the Eleventh Circuit Court of Appeals explained, notice to an excess carrier
      is required only when it is “reasonably likely that the claim will be found to have a value in excess of the primary insurance limits. “Reasonable” to whom? The insured’s appraisal will have to control unless, as a matter of law, it is unreasonable. The fact is that excess carriers are not interested in receiving notice of every claim against their insureds. The excess insurer does not undertake to defend the insured. Consequently, the excess insurer is not interested in every accident, but only in those serious enough to involve it. Excess policies, therefore, usually require an assured to give notice of claims that appear “likely to involve” the excess.
      (Emphasis supplied.) Evanston Ins. Co. v. Stonewall Surplus Lines Ins. Co., 111 F3d 852, 860 (II) (B) (11th Cir. 1997) (applying Georgia and Wisconsin law).

        See Protective Ins. Co. v. Johnson, 256 Ga. 713, 714 (1) (352 SE2d 760) (1987) (holding that the insured’s 17-month delay in notifying his insurer of a claim was unreasonable as a matter of law when the insured’s reasons for the delay were that he thought his employer would file the claim, he did not know the name of the employer’s insurer, and he thought the vehicle at issue was uninsured); Allstate Ins. Co. v. Walker, 254 Ga. App. 315, 316-17 (1) (562 SE2d 267) (2002) (holding that the insurance company was entitled to summary judgment when the plaintiffs did not notify the company of the loss for almost a year because they were unaware that their policy might afford coverage for theft and there was no evidence that their “ignorance of the terms of the subject insurance policy was due to any fraud or overreaching on the part of the insurer or its agents” (punctuation omitted)); Townsend v. Nat’l Union Fire Ins. Co., 196 Ga. App. 789, 789 (397 SE2d 61) (1990) (holding that the insured’s 70-month delay in notifying his car insurance carrier of his claim was unreasonable as a matter of law when his only excuse was that he was unaware that he was entitled to benefits and he did not know the name of the carrier insuring his truck); Snow v. Atlanta Int'l Ins. Co., 182 Ga. App. 1, 1-2 (354 SE2d 644) (1987) (holding that a 10-month delay in providing notice to an insurance company of a claim was unexcused and unreasonable as a matter of law when the insured was aware that he was insured through some policy but claimed that he did not know what company or companies carried his insurance); Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga. App. 697, 706-07 (3) (172 SE2d 159) (1969) (holding that insured’s excuse for delayed notice — that the insurance policy was not in his possession — was insufficient as a matter of law and explaining that “[i]f the policy was lost or destroyed it was by [the insured’s] negligence and through no fault of [the insurer], [the insurer] could, as it apparently did, assume that [the insured] had the policy and was familiar with its provisions”).

        See Roberson v. Leone, 315 Ga. App. 459, 462 (726 SE2d 565) (2012) (“In Georgia, 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.” (punctuation omitted); accord Turner v. Gateway Ins. Co., 290 Ga. App. 737, 739 (660 SE2d 484) (2008).

        See Plantation Pipeline Co. v. Royal Indem. Co., 245 Ga. App. 23, 27 (1) (537 SE2d 165) (2000) (explaining that “[t]he purpose of a notice provision in a policy of insurance is to allow the insurer to investigate promptly the facts surrounding the occurrence and to prepare a defense or determine whether a settlement is feasible, while the facts ‘are still fresh and the witnesses are still available’ ”) (citation omitted) (emphasis supplied); accord Richmond v. Ga. Farm Bureau Mut. Ins. Co., 140 Ga. App. 215, 221 (3) (231 SE2d 245) (1976); Bitminous Cas. Corp. v. J. B. Forrest & Sons, Inc., 132 Ga. App. 714, 717 (1) (209 SE2d 6) (1974).

        See supra footnote 20.

        See Kerr v. Ill. Cent. R.R. Co., 670 NE2d 759, 765 (Ill. App. 1996) (holding that “[a]n excess insurer should not be forced to rely on its insured or the primary insurer to protect its interests where timely notice would provide the excess insurer with an opportunity to pursue its own investigation”); Am. Home Assurance Co. v. Int’l Ins. Co., 684 NE2d 14, 17 (N.Y. App. 1997) (noting that “the important function of prompt notice in furnishing even an excess carrier with an opportunity to participate in settlement discussions at a time when its input is most likely to he meaningful”); Douglas R. Richmond, Rights and Responsibilities of Excess Insurers, 78 Denv. U. L. Rev. 29, 44-45 (2000) (concluding that an excess insurer should not be compelled to rely upon the insured to protect its interests and that excess insurers “need an option to defend in order to protect themselves in cases where . .. the primary insurer is not mounting a strong defense”).

        Hathaway Dev. Co. v.Am. Empire Surplus Lines Ins. Co., 301 Ga. App. 65, 68 (1) (b) (686 SE2d 855) (2009) (“The purpose of notice is to enable the insurer to inform itself promptly-concerning the accident, so that it may investigate the circumstances, prepare for a defense, if necessary, or be advised whether it is prudent to settle any claim arising therefrom.”) (punctuation omitted); Plantation Pipeline Co., 245 Ga. App. at 27 (1) (“The purpose of a notice provision in a policy of insurance is to allow the insurer to investigate promptly the facts surrounding the occurrence and to prepare a defense or determine whether a settlement is feasible, while the facts are still fresh and the witnesses are still available.” (punctuation omitted)).


source: Caselaw Access Project

author: Doyle, Chief Judge.

license: Public Domain

text:
    A15A1485.
    DLT LIST, LLC et al. v. M7VEN SUPPORTIVE HOUSING & DEVELOPMENT GROUP.
    (779 SE2d 436)
   Doyle, Chief Judge.

The instant case arises from an equitable interpleader action filed following the tax sale of certain real property in Carroll County, Georgia, by Vickie Bearden, in her capacity as Tax Commissioner of the County, in order to disburse excess tax-sale funds totaling $105,188.91. The trial court awarded the excess funds to M7VEN Supportive Housing & Development Group (“M7”), finding that M7 was the only interest holder able to make a claim on the funds at the time of the sale. Design Acquisition, LLC (“Design”), and DLT List, LLC, now appeal, arguing that the trial court erred by (1) failing to provide them with notice and a hearing; (2) awarding M7 the excess funds; and (3) determining that Bearden was not authorized to file an interpleader action. For the reasons that follow, we affirm.

The record shows that on June 3, 2014, based on M7’s failure to pay certain taxes on two properties, Bearden conducted tax sales of the properties, which DLT List purchased for $55,000 per property. On June 6, 2014, Bearden notified M7, Farooq Ijaz Cheema, Ameris Bank, DLT List, and Marshall Jones of excess funds. On July 14, 2014, M7 filed with Bearden a certificate of authorization to receive the excess funds, including August 18,2014 certificates of title listing DLT List as owner of the properties subject to M7’s right of redemption. None of the other parties made a claim to the funds. On July 28, 2015, DLT List filed its tax deeds for each property in the property records of Carroll County.

Based on its ownership of a Fulton County fieri facias as evidence of its status as a lienholder against M7, Design redeemed from DLT List the Carroll County properties for the statutory redemption amounts of $66,000 each on September 22, 2014; DLT List then issued Quit Claims of Redemption to M7 for both properties as required pursuant to OCGA § 48-4-44. On October 27, 2014, Design filed a declaratory judgment action, claiming entitlement to the excess funds based on its redemption of the Carroll County properties.

On November 14, 2014, Bearden filed the equitable interpleader petition at issue here, listing M7 as the owner of the properties at the time of the tax sales and as a respondent to the petition. Bearden also listed Cheema, Ameris Bank, DLT List, and Jones as respondents with potential interests in the petition. DLT List, M7, and Ameris Bank acknowledged service of the action.

In December 2014, M7 responded to the action, contending that Bearden should have released the excess funds to it because (1) Cheema’s lien had been extinguished by a previous foreclosure of the properties, barring him from any claim to the excess funds; (2) Ameris Bank had conveyed any interests in the properties to M7 prior to the tax sales, barring it from any claim to the excess funds; (3) DLT List was the tax sale purchaser and was, therefore, not entitled to the excess funds; and (4) Jones was not listed anywhere in the chains of titles of the properties and had no claim to the funds.

On January 21, 2015, DLT List filed a Motion to Dismiss or Consolidate the equitable interpleader action with Design’s declaratory judgment action. That same day, Design filed a Consent Motion to Intervene in the interpleader action.

After a telephonic hearing on January 27, 2015 (a transcript for which does not appear in the record), the trial court allowed the parties to brief the issue of rights to the excess funds. On February 6,2015, Design filed documents in response to this telephonic hearing supporting the position it argued to the superior court. Thereafter, the trial court issued an order finding that because M7 was the only claimant to respond or have an interest in or title to the properties at the time Bearden issued the excess funds notification in June 2014, Bearden should have issued the funds to M7 within a reasonable time after submission of its claim. This appeal followed.

1. Relying on this Court’s previous decisions in Wester v. United Capital Financial of Atlanta, send United Capital Financial of Atlanta v. American Investment Assoc., Design contends that the trial court erred by awarding M7 the excess funds because Design’s status as redeemer of the property gave it first priority to the excess funds. Because we determine that Wester and United Capital were wrongly decided as to this issue, we hereby disapprove of those cases and affirm the trial court’s award of the excess funds to M7.

Pursuant to OCGA § 48-4-1, if a property owner fails to pay county property taxes, the county may issue a writ of fieri facias and conduct a sale of the property to satisfy the unpaid taxes. The “tax [sale] deed vests the purchaser with a defeasible (and, incidentally, taxable) fee interest in the property,” which continues for a one-year period during which time “the delinquent taxpayer or any other party holding an interest in or lien on the property may redeem the property by paying to the tax sale purchaser the purchase price plus any taxes paid and interest.” Otherwise, if no one redeems the property, all the liens and ownership interests in the property existing prior to the tax sale are swept away at the close of the year, leaving the tax-sale purchaser with clear title to the property; essentially, the tax-sale purchaser becomes the fee simple owner of the property while the prior lienholders and owner have no remaining interest in the property. On the other hand, if the prior owner or a lienholder (or other creditor of the owner) does redeem the property from the tax-sale purchaser, then the tax-sale purchaser quitclaims the property back to the original owner, and any lienholders at the time of the sale that have not been fully paid (through excess funds or another method) retain their pre-sale liens on the property. Under this scenario, the redeeming creditor receives a priority lien for the redemption price of the property, which puts this lien ahead of any of the remaining prior liens.

At times, a tax sale will generate additional funds than necessary to satisfy the tax lien for which the land was levied and sold. In those instances, OCGA § 48-4-5 (a) explains the process for payment of excess tax sale proceeds:

If there are any excess funds after paying taxes, costs, and all expenses of a sale made by the tax commissioner, tax collector, or sheriff, or other officer holding excess funds, the officer selling the property shall give written notice of such excess funds to the record owner of the property at the time of the tax sale and to the record owner of each security deed affecting the property and to all other parties having any recorded equity interest or claim in such property at the time of the tax sale. Such notice shall be sent by first-class mail within 30 days after the tax sale. The notice shall contain a description of the land sold, the date sold, the name and address of the tax sale purchaser, the total sale price, and the amount of excess funds collected and held by the tax commissioner, tax collector, sheriff, or other officer. The notice shall state that the excess funds are available for distribution to the owner or owners as their interests appear in the order of priority in which their interests exists.

This statute looks to the owner and lienholders prior to the tax sale, and tax-sale purchasers have no claim to the excess funds based on their post-sale ownership. Previous iterations of this statute were interpreted to mean that the excess funds should be distributed to the owner of the property if no lienholder existed at the time of the tax sale, or to any lienholders (in addition to the owner) if the lienholders had a valid interest arising prior to the tax sale.

Thus, after a tax sale occurs, the officer holding the excess sale funds provides notice within 30 days of the sale to the recorded owners and interest holders, and then distributes those excess funds to the persons holding interests in the property in existence from the time of the tax sale, such as the owner or owners or any lienholders (or their proper post-sale assignees).

In this case, at the time of the tax sale, M7 was the owner and there were no recorded liens on the property. And at the time of M7’s claim against the excess, there were no claimants other than M7 and Design, which failed to present a claim for its Fulton County tax lien and only presented a claim for the amount of the redemption price of the properties. Thus, the trial court properly determined that Bearden should have dispersed the excess funds to M7. Design, as the redeeming creditor, claims that its first priority lien entitles it to the excess tax funds for the redemption price of the properties (not the amount of its original lien or interest) pursuant to Wester and United Capital.

Wester and its progeny, however, without explanation incorrectly expanded the holding of Nat. Tax Funding to mean that the redeeming creditor could both redeem the property and receive excess funds from the tax sale to pay for the priority lien created by the redemption. Instead, Nat. Tax Funding held that “following a tax sale, the holder of a . . . lien has two options — it may either file a claim to collect against any proceeds from the sale, or it may assert its rights following the tax sale via a statutory claim for redemption, in which case it obtains a first priority lien on the property, which it may then enforce by levy and sale.” Accordingly, to the extent that Wester and its progeny hold that the redeeming creditor has a first priority claim on the excess tax funds for the amount paid to redeem the property, they are hereby overruled. As the assignee of InVesta Services’s pre-tax-sale lien, Design was entitled to make a claim against the excess tax funds for the amount of its Fulton County tax lien (at least $1,395.55) with the remainder of the excess funds going to M7 (the only other claimant for the funds). It is the redemption price, however, that would not be recoverable from the excess and would be the first priority lien (in this case the only lien) against the property going forward.

Decided November 10, 2015

Reconsideration denied December 15, 2015

Clark Caskey, John C. Clark, for appellants.

Lamberth, Cifelli, Ellis & Nason, Donald L. Cook, Jr., for appel-lee.

2. To the extent that Design contends that it did not receive due process, that claim is without merit. The record shows that the trial court held a telephonic conference in which Design’s attorney participated, and the court allowed the parties to brief the issue after that conference. Design fails to show that it was not afforded an opportunity to present all its arguments to the trial court.

3. Lastly, Design argues that the trial court erred by finding that Bearden did not have discretion to file the interpleader action. No order, however, indicates that the trial court made any such holding. What the trial court found instead was that at the point in time in which Bearden filed the action, it was not necessary because she should have paid the M7 claim (or filed an equitable interpleader) some four months earlier. Accordingly, this argument is without merit.

Judgment affirmed.

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

       Although the appellants’ brief purports to include Marshall Jones as an appellant, the record does not show that Jones has appeared before the trial court or this Court or that the attorney representing Design and DLT List made an entry of appearance on behalf of Jones.

       M7 had also failed to pay taxes in 2013 on Fulton County property, which resulted in the issuance of a writ of fieri facias against both M7 and its Fulton County property. The Fulton County fieri facias, which does not appear to have been recorded in the Carroll County general execution docket, was purchased for $1,395.55 by InVesta Services of Georgia on January 15, 2014. On September 10, 2014, Design purchased the Fulton County fieri facias from InVesta.

       Design named M7 and Bearden as respondents in its declaratory judgment action; Bearden was served on November 6, 2014.

       Cheema and Ameris at one time held liens on the property, while DLT List and Jones were listed as purchasers of the properties at the June 3 tax sales.

       DLT List claimed it had not been served with the equitable interpleader action; however, an acknowledgment of service by DLT List was filed in the court on December 1, 2014.

       Design admits that its motion to intervene was granted during the telephonic conference. Ahearing had been held on January 15, 2015; however, no ruling was made at that hearing.

       Although M7 contends that it filed a letter brief, such document does not appear in the record before this Court.

       282 Ga. App. 392 (638 SE2d 779) (2006).

       302 Ga. App. 400 (691 SE2d 272) (2010).

        Nat. Tax Funding v. Harpagon Co., 277 Ga. 41, 42-43 (1) (586 SE2d 235) (2003).

       See id. at 43 (2). The tax-sale purchaser must follow applicable procedures to foreclose the redemption period. See OCGA § 48-4-45.

       See id. at 44-45 (3).

       See id.

       See id. at 42-43 (1).

       (Emphasis supplied.) In 2002, OCGA § 48-4-5 was amended from “[i]f there is any excess after paying taxes, costs, and all expenses of a sale, it shall be immediately paid to the person authorized to receive the excess,” to state that “[i]f there is any excess after paying taxes, costs, and all expenses of a sale, the tax commissioner or tax collector may file an interpleader action in superior court for the payment of the amount of such excess. Such excess shall be distributed by the superior court to intended parties, including the owner as their interest appears and in the order of priority in which their interest exists.” The current Code section was implemented in 2006.

        See Barrett v. Marathon Investment Corp., 268 Ga. App. 196, 197-198(1) (601 SE2d 516) (2004) (purchase of property at tax sale did not entitle post-sale owner to any interest in the excess tax funds generated from that sale).

       See, e.g., Simmons v. May, 53 Ga. App. 454, 456 (186 SE 441) (1936) (“[If] one who creates a lien upon his property as security for debt thereafter permits the same to sell for delinquent taxes accruing after the creation of the lien, by which sale the security is lost to the lienee, the lienee is entitled to any excess remaining in the hands of the tax authorities, after payment of the taxes, costs and expenses of sale; and as against the lienee[,] the lienor has no right to this excess, even were the security returned for taxation and assessed in the name of the lienor by reason of a statute directing the excess from any tax sale to be ‘paid to the person authorized to receive the same.’ ”) (citations omitted) (pre-2002 statute). See also Barrett, 268 Ga. App. at 197-198 (1), (2) (holding that an owner of property at the time of a tax sale may sell or deed his right to the excess sale proceeds after the tax sale is completed) (pre-2002 statute); Ga. Lien Svcs. v. Barrett, 272 Ga. App. 656 (613 SE2d 180) (2005) (same, but holding that the owner failed to validly transfer rights to excess funds).

       282 Ga. App. at 392.

       See id. at 393-394. See also United Capital, 302 Ga. App. at 402-403 (1). To the extent that Brina Bay Holdings v. Echols, 314 Ga. App. 242 (723 SE2d 533) (2012), also follows this holding, we note that this case is physical precedent only.

       See, e.g., Scott v. Vesta Holdings I, 275 Ga. App. 196, 201 (1) (620 SE2d 447) (2005).

       (Emphasis supplied.) Nat. Tax Funding, 277 Ga. at 44 (3).

       See Barrett, 268 Ga. App. at 197-198 (1), (2). See also Leathers v. McLain, 255 Ga. 378 (338 SE2d 666) (1986) (“The assignee of a security deed has legal title to the property, subject to the right of the original grantor to have the property reconveyed to him upon payment of the debt.”); OCGA § 48-2-56 (a) (“liens for all taxes due the state or any county or municipality in the state shall arise as of the time the taxes become due and unpaid and all tax liens shall cover all property in which the taxpayer has any interest from the date the lien arises until such taxes are paid.”). Thus, even though the lien was not recorded in Carroll County, the lien was of record.

       See Barrett, 268 Ga. App. at 197-198 (1), (2). We note that Design did not make such a claim for this amount from Bearden, it did not request excess funds in this amount from the trial court, and it did not raise this claim in its brief before this Court. Accordingly, any such claim to entitlement to this amount from the excess funds is not properly before this Court. See McLeod v. Robbins Assn., 260 Ga. App. 347, 348 (1) (579 SE2d 748) (2003).

       We note that OCGA § 48-4-5 (b) states that if necessary “[t]he... [tax] officer may file... an interpleader action in superior court for the payment of the amount of such excess funds. Such excess funds shall be distributed by the superior court to the intended parties, including the owner, as their interests appear and in the order of priority in which their interests exist.”


author: BARNES, Presiding Judge. RAY, Judge,

text:
    A15A1566.
    ROBLES et al. v. YUGUEROS et al.
    (779 SE2d 139)
   BARNES, Presiding Judge.

Rudy Robles, individually and as surviving spouse to Iselda Moreno and as administrator of the estate of Iselda Moreno (collectively, “Robles”), filed this suit against Patricia Yugueros, M.D., and her practice group, Artisan Plastic Surgery, LLC (Artisan), alleging that Dr. Yugueros committed medical malpractice during the postoperative care of Moreno, who died from complications after surgery. Robles appeals from the jury’s verdict and judgment in favor of the defendants. He contends that the trial court erred in excluding Artisan’s admission against interest, among other things. Because we agree that the trial court erred in excluding this evidence and that the error was harmful, we reverse the judgment entered on the defense verdict and remand for a new trial.

The record shows that on June 24,2009, Dr. Yugueros performed a liposuction, buttock augmentation, and abdominoplasty surgery on Moreno at Northside Hospital. Moreno remained in the hospital overnight and was discharged the next day, with a post-operative visit scheduled for June 29, 2009.

On Saturday, June 27, 2009, two days after being discharged, Moreno called Dr. Yugueros at around 7:15 a.m. to report that she was experiencing pain in her upper abdomen and not eating well. Dr. Yugueros believed that Moreno was having gastritis caused by her prescribed medications, so she told Moreno to take only Turns and Tylenol instead. Robles called Dr. Yugueros a few hours later and said his wife was still in pain and he wanted to take her to the hospital. Dr. Yugueros recommended that they go to Northside Hospital, where she had privileges, but they went instead to Gwinnett Medical Center’s (GMC) emergency department, where Moreno complained of severe abdominal pain, nausea, and vomiting.

Moreno was treated in GMC’s emergency department by Dr. Michael Violette, an emergency room physician. Dr. Violette ordered an abdominal x-ray and read it as “unremarkable.” Laboratory tests of Moreno’s blood and urine were ordered, and the results revealed nothing unusual. He also examined Moreno’s abdomen, diagnosed her with post-operative pain, and ordered anti-nausea and pain medication. She was then released from the ER with instructions to return if her symptoms worsened.

Dr. James York, a GMC radiologist, read the same x-ray Dr. Violette had reviewed. He thought it showed possible “free intraperi-toneal air” in her abdomen and recommended a CT scan. “Free air” could be a normal finding in a post-operative patient, but it could also indicate a serious condition. Dr. York’s report was posted to Moreno’s electronic medical record and faxed to GMC’s emergency department shortly after Moreno was discharged, but neither Dr. York nor anyone else from GMC contacted Dr. Violette, Moreno, or Dr. Yugueros about Dr. York’s findings. And no one checked GMC’s fax machine until the following Monday.

Roughly three hours after being discharged from the GMC emergency department, Moreno was still suffering from extreme abdominal pain. Dr. Yugueros instructed Moreno not to return to GMC, but instead, to go to Northside where she had privileges. Following an initial work-up in the Northside emergency room, Dr. Yugueros admitted Moreno for pain control and further evaluation.

Once admitted, Dr. Yugueros ordered that Moreno receive an incentive spirometer to assist her lungs and prescribed pain medications. Moreno’s lab work returned within the normal range. Dr. Yugueros did not order x-rays or a CT scan.

Around 5:15 a.m., Moreno’s nurse called Dr. Yugueros to report that the prescribed medication was not adequate to control Moreno’s pain and that Moreno had concentrated urine and hypoactive bowel sounds. Dr. Yugueros ordered a different pain medication, IV fluids, and medication to help move Moreno’s bowels.

Later that morning, Dr. Yugueros came to Northside and observed Moreno for approximately two hours, inspecting her surgical dressings and palpating her abdomen. Around 2:40 p.m., a nurse contacted Dr. Yugueros because Moreno’s legs were numb and she had to be carried out of the bathroom to bed. Dr. Yugueros instructed the nurse to contact the rapid response team, which decided in concert with Dr. Yugueros to order an abdominal X-ray, an electrocardiogram, and blood tests. Dr. Yugueros also ordered abdominal pressure measurements to rule out abdominal compartment syndrome and ordered an internist consult.

Around 4:00 p.m., a hospitalist contacted the on-call surgeon for a consultation because Moreno’s x-ray showed evidence of abdominal free air. The surgeon had to attend to another emergency patient first, but Moreno went into surgery around 7:10 p.m. The surgeon discovered that Moreno’s stomach had basically torn open and was 95 percent necrotic. Moreno died later that evening.

Robles filed suit against Dr. Yugueros and Artisan, alleging professional and ordinary negligence arising out of Dr. Yugueros’ post-operative medical care and treatment of Moreno. He did not name GMC or any of its doctors or employees as defendants, but Dr. Yugueros and Artisan filed notices designating GMC, Dr. Violette, and Dr. York as nonparties against whom the jury should consider apportioning damages. At the end of the trial, part one of the verdict form allowed the jury to find for either the plaintiff or the defendants, and instructed the jury that if it found for the defendants, it should stop there and sign and return the verdict. If it found for Robles, the jury was instructed to continue to part two regarding the damages award and the apportionment of fault among the defendants and nonparties listed on the verdict form. The jury returned a verdict in favor of Dr. Yugueros and Artisan, and Robles appeals.

Robles argues that the trial court erred in granting Artisan’s motion in limine to exclude a portion of the deposition given by Artisan’s corporate representative in response to Robles’ notice of deposition under OCGA § 9-11-30 (b) (6). We agree the trial court erred in granting the motion, and that the error was harmful.

OCGA § 9-11-30 (b) (6) provides:

A party may, in his or her notice, name as the deponent a public or private corporation or a partnership or association or a governmental agency and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he or she will testify. The persons so designated shall testify as to matters known or reasonably available to the organization. . . .

(Emphasis supplied.) In Robles’ notice of deposition, he asked Artisan to designate someone who has “the most complete knowledge and [is] best informed as to the following areas on which examination is requested,” including specifically “[t]he care and treatment rendered by Patricia Yugueros, M.D., to Iselda Moreno.”

Artisan designated Diane Z. Alexander, M.D., as its representative to respond to the topics identified in Robles’ notice of deposition. Dr. Alexander is the president of Artisan’s board and owns half of the practice. At the deposition, Robles asked Dr. Alexander to recount her recollection of what she had been told about Dr. Yugueros’ care of Moreno, and Dr. Alexander related the events as she understood them, beginning with Moreno’s first two calls to Dr. Yugueros regarding her post-surgical pain. Dr. Alexander recalled that Moreno had gone to the GMC emergency room and had been discharged, called again with complaints of pain, and then went to Northside Hospital’s emergency room, where Dr. Yugueros admitted her for observation. After Moreno’s pain was controlled, Dr. Yugueros went home, but Moreno was then admitted to the intensive care unit and began to decompensate. Dr. Yugueros returned to the hospital and called general surgery, Moreno was put on the schedule, her surgery was delayed but she was finally brought to the operating room, and she passed away within hours.

Dr. Alexander concluded her recitation of Moreno’s post-op treatment and care by saying, “I believe somewhere in there she had a CT scan as well,” and the following exchange took place:

Q. Do you know who ordered a CT scan?
A. I suspect Dr. Yugueros ordered it.
Q. Would that, given your understanding, have been part of the standard of care to order a CT scan?
[Objection to form.]
A. If you don’t understand why the patient — why they’re having pain, it would be standard of care to — if you don’t know what’s going on, that would be a — yes. The answer is, yes, a CT scan would be — it would provide more information. And then the other piece of information that I remember were [sic] that she had the x-ray at the other hospital which showed free air and that that had not been communicated to Dr. Yugueros or — and the emergency room at Northside was also not made aware of that as well. So that’s my recollection and that’s just what Dr. Ashraftoldme about the case.

In response to a notice to produce, Dr. Alexander brought to the deposition and identified Moreno’s medical records that Artisan had maintained.

The trial court granted Artisan’s motion in limine to exclude this testimony, finding that it was based on hearsay, that Dr. Alexander’s opinion was not based on all the data necessary to form an opinion, that Robles did not ask whether Dr. Alexander could say to a degree of medical certainty that Dr. Yugueros violated the standard of care, and that the testimony was ambiguous and could mean that “the CAT scan is part of what might be considered as part of the standard of care to be considered.” But the issue is not whether Dr. Alexander’s testimony was admissible as an expert opinion under OCGA § 24-7-702 (b). Under OCGA § 9-11-32 (a) (2), the properly-noticed deposition of an OCGA § 9-11-30 (b) (6) witness is admissible against a party who was represented at the deposition, subject to the rules of evidence.

The defendant-appellees argue that a trial court’s decision about whether a witness is qualified to render an expert opinion should be reviewed for abuse of discretion only, and contend that Dr. Alexander was not qualified as an expert and that her opinion was not buttressed by sufficient facts or data to be admissible. But this argument misses the mark entirely. The evidence was not offered as expert testimony under OCGA § 24-7-702 (b); it was offered as a party’s admission against interest under OCGA § 9-11-32 (a) (2). Further, the fact that Dr. Alexander’s admission was prefaced by the erroneous belief that Dr. Yugueros had ordered a CT scan when no one actually ever ordered one only adds to the import of her admission. She assumed that Dr. Yugueros had ordered a CT scan because, according to Dr. Alexander’s subsequent explanation, the standard of care would be for the doctor to order a scan and obtain more information if she did not understand “what’s going on” or why the patient was having pain. Her testimony about standard of care was not based on whether or not Dr. Yugueros actually ordered a CT scan, but was simply an explanation of why a doctor should have done so.

The dissent would find harmless any error in this evidentiary ruling because the plaintiff presented expert testimony that the standard of care was to have ordered a CT scan, and because Robles could have called Dr. Alexander as a live witness and asked “similar non-objectionable questions.” But the testimony of an expert witness, or even two expert witnesses, is not comparable to a party’s admission against interest. And the fact that Robles could have called Dr. Alexander as a live witness is irrelevant, because he was entitled under OCGA § 9-11-32 (a) (2) to introduce the deposition testimony into evidence.

The trial court’s error in failing to allow Robles to introduce Artisan’s admission against interest was not harmless and necessitates a new trial.

Because the case must be retried, we do not reach the remaining enumerations of error.

Judgment reversed and case remanded with direction.

Doyle, C. J., Phipps, P. J., Boggs and McMillian, JJ., concur. Andrews, P. J., and Ray, J., dissent.

RAY, Judge,

dissenting.

I respectfully dissent to the majority’s opinion because I believe it was within the trial court’s discretion to exclude that portion of Dr. Alexander’s OCGA § 9-11-30 (b) (6) deposition testimony regarding whether the standard of care in the instant case required Dr. Yugueros to order a CT scan. Further, even if the trial court erred in this decision, I believe that such error was harmless. See Griffin v. Greene County Hosp. Auth., 260 Ga. App. 122, 124 (2) (578 SE2d 913) (2003).

As noted by the majority, Robles sent a deposition notice to Artisan requesting that the company produce an OCGA § 9-11-30 (b) (6) representative to be deposed regarding, inter alia, “[t]he care and treatment rendered by Patricia Yugueros, M.D. to Iselda Moreno.” In response to that notice, Artisan provided its president and founding partner, Dr. Alexander. At the deposition, Dr. Alexander erroneously testified that a CT scan had been ordered during the course of Moreno’s treatment. Robles’s counsel asked Dr. Alexander, “Do you know who ordered a CT scan?” She responded that “I suspect Dr. Yugueros ordered it.” Robles’s counsel then inquired, “[w]ould that, given your understanding, have been a part of the standard of care to order a CT scan?” Defense counsel objected “to the form” of the question, but Dr. Alexander testified that “[i]f you don’t understand why the patient — why they’re having pain, it would be standard of care to — if you don’t know what’s going on, that would be a — yes. The answer is, yes, a CT scan would be — it would provide more information.”

The defendants sought to exclude this portion of Dr. Alexander’s deposition testimony at trial. In the motions hearing regarding this issue, defense counsel argued, inter alia, that the testimony regarding the standard of care was inadmissible because Dr. Alexander had not been qualified as an expert witness and, thus, was not eligible to offer her testimony as to the standard of care, and because Dr. Alexander did not base her opinion regarding the standard of care upon the facts of the case.

As noted in the majority’s opinion, one of the trial court’s stated reasons for granting the defendants’ motion in limine to exclude this statement was that Dr. Alexander’s opinion was not based on all the data necessary to form a valid expert opinion. Dr. Alexander’s statement was clearly not based upon the facts of the case, as she erroneously believed that Dr. Yugueros had ordered a CT scan. See OCGA § 24-7-702 (b) (A witness qualified as an expert may offer opinion testimony if it is based upon sufficient facts or data and is the product of reliable principles and methods and if the witness has applied the principles and methods reliably to the facts of the case). See also Ga. Dept. of Transp. v. Owens, 330 Ga. App. 123, 127 (1) (766 SE2d 569) (2014) (“The question of whether a witness is qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion”) (citations and punctuation omitted). Here, because Dr. Alexander’s opinion clearly was based, at least in part, on an erroneous statement of fact, I do not believe that the trial court abused its discretion in excluding it.

Further, even if the trial court’s exclusion of this testimony was in error, I believe that such error was harmless in light of other properly admitted expert testimony providing the same opinion and in light of Robles’s opportunity, but failure, to call Dr. Alexander to the stand to question her on this issue. See, e.g., Griffin, supra at 124 (2) (trial court’s error in failing to admit deposition testimony of defendant’s designated OCGA § 9-11-30 (b) (6) deponent was harmless error). See also Marathon Oil Co. v. Hollis, 167 Ga. App. 48, 53 (5) (305 SE2d 864) (1983) (trial court’s exclusion of plaintiff’s deposition did not require reversal where plaintiff was called as a witness at trial and was thoroughly cross-examined by appellant’s counsel, and the deposition was used for impeachment purposes). Robles presented opinion testimony from other properly qualified expert witnesses that Dr. Yugueros allegedly violated the standard of care by not ordering a CT scan to investigate the source of Moreno’s pain, and that a CT scan was necessary and would have shown the presence of free air and the acute abdominal condition. Robles was likewise not prohibited by the trial court from calling Dr. Alexander as a live witness to testify; this he chose not to do.

Decided November 20, 2015

Reconsideration denied December 15, 2015

Isenberg & Hewitt, Brent J. Kaplan, for appellants.

Carlock, Copeland & Stair, Thomas S. Carlock, Wayne D.McGrew III, Neil T. Edwards; Huff, Powell & Bailey, M. Scott Bailey, Erica S. Jansen, for appellees.

For the above reasons, I respectfully dissent to the majority’s opinion.

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

       Additionally, the defendants objected to the form of the question about the standard of care. While I have no doubt that Dr. Alexander could have been qualified as an expert to answer such question, it does not appear to me that she was asked the necessary questions to have been so qualified.

       Notably, Robles could have called Dr. Alexander to the stand, established that she had credentials to qualify as an expert on the subject of the requisite standard of care, ensured that she was fully apprised of the facts of the case, and then asked her whether the standard of care in this situation would have required that Dr. Yugueros order a CT scan. If Dr. Yugueros had responded that it would not, then Robles could have sought to impeach her testimony with her statements in her deposition.