author: Johnson, Judge.

text:
    A10A2118.
    CITY OF CARROLLTON v. THE INFORMATION AGE, INC.
    (703 SE2d 431)
   Johnson, Judge.

On September 9, 2009, The Information Age, Inc. submitted a request to the City of Carrollton to inspect 13 categories of documents pursuant to what is commonly known as the Georgia Open Records Act. The City made records available under three of the requests, responded that it had no records responsive to six of the requests, and responded that it found the remaining four requests to be “vague” and “overly broad and unduly burdensome.”

After the City refused to provide access to public records in response to the four allegedly improper requests, The Information Age filed a complaint with the Superior Court of Carroll County. Following a hearing, the trial court (i) ordered the City to make documents responsive to the four requests available to The Information Age, with The Information Age bearing the costs of production as provided by the Open Records Act, and (ii) awarded $1,750 in attorney fees to The Information Age based on the City’s violation of the Open Records Act without substantial justification. The City appeals, but we find no error and affirm.

A trial court is vested with discretion in determining whether to allow or prohibit inspection of documents under the Open Records Act, and we will review a trial court’s decision in that regard for an abuse of discretion. Similarly, the decision to award attorney fees under the Open Records Act is reviewed for an abuse of discretion. Finally, a trial court’s factual findings shall not be set aside unless clearly erroneous, and we will construe the evidence to support the trial court’s judgment.

So viewed, the record shows that the Open Records Act request was sent by The Information Age to the City on September 9, 2009. The four requests at issue sought access to “public records regarding”:

1. All non-health related insurance claims filed by the City of Carrollton since October 1, 2008;
2. All non-health related insurance claims filed against the City of Carrollton since October 1, 2008;
3. All non-health related insurance payments to the City of Carrollton as a result of insurance claims since October 1, 2008; [and]
4. All non-health related insurance payments to anyone from the City of Carrollton’s insurance since October 2008[.]

As to each of these requests, the City responded that it found “this individual request overly broad and unduly burdensome. This individual request is also vague and causes the City to speculate as to the meaning of ‘non-health related insurance claims.’ Accordingly, the City possesses no records responsive to this request.”

At the hearing before the trial court, The Information Age claimed (and the City did not dispute) that after receiving the City’s written response, its president separately contacted the City’s clerk, attorney, and manager; and each of them said the City would not be providing access to any documents pursuant to the requests at issue. The Information Age also asked the Carrollton City Council to address the matter during a public comments portion of a Council meeting. On February 8, 2010, The Information Age filed the complaint that serves as the basis for this appeal.

1. While the City seeks to argue the legal issue of whether a party can be found in violation of the Open Records Act when a request is overly broad, that is not the case that is brought before us. Here, the trial court found that there was nothing vague about the requests at issue, but rather that they were as “plain as day” and “self-explanatory.” The trial court also found that it would not be a burden for the City to provide access to the requested public records, especially since it could charge The Information Age the costs of providing such access. These findings of fact were supported by the evidence, and we will not disturb them.

Decided November 22, 2010

Smith, Diment & Conerly, Charles S. Conerly, for appellant.

Gary P. Bunch, for appellee.

2. The City also claims the trial court erred in awarding The Information Age $1,750 in attorney fees. OCGA § 50-18-73 (b) provides that a trial court “shall” award “reasonable attorney’s fees and other litigation costs reasonably incurred” if it determines that a “party acted without substantial justification” in not complying with the Open Records Act “unless it finds that special circumstances exist.” Here, the City does not submit that the amount awarded was unreasonable or excessive, but only that it was error to award attorney fees at all. The record, however, contains no evidence that the court has abused its discretion in making the award of attorney fees, and we find that this enumeration is without merit.

Judgment affirmed.

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

       OCGA § 50-18-70 et seq.

        Fulton DeKalb Hosp. Auth. v. Miller & Billips, 293 Ga. App. 601, 602 (1) (667 SE2d 455) (2008).

        Felker v. Luhemire, 267 Ga. 296, 299 (3) (477 SE2d 23) (1996).

        Claxton Enterprise v. Evans County Bd. of Commrs., 249 Ga. App. 870 (549 SE2d 830) (2001).

       We note that the Supreme Court of Georgia has held that the custodian of public records is required to “provide reasonable access to the files that are sought!,]” but need not “comb through his files in search of documents sought by a public citizen.” Felker, supra.

       See Claxton Enterprise, supra.

        Richmond County Hosp. Auth. v. Southeastern Newspapers Corp., 252 Ga. 19, 21 (311 SE2d 806) (1984).


source: Caselaw Access Project

author: POPE, Senior Appellate Judge.

license: Public Domain

text:
    A10A1098.
    HUGHSTON ORTHOPEDIC HOSPITAL et al. v. WILSON.
    (703 SE2d 17)
   POPE, Senior Appellate Judge.

Wanda Wilson sought workers’ compensation benefits, alleging that her exposure to fumes from wallpaper glue and primer during the remodeling of her workplace resulted in permanent brain damage. The Appellate Division of the State Board of Workers’ Compensation (“State Board”) found that Wilson had not suffered a com-pensable work-related injury, but the superior court reversed the State Board’s decision. Having granted the employer and its insurer’s application for discretionary appeal, we reverse the superior court because there was some evidence to support the State Board’s decision to decline to award benefits.

“In reviewing an award of workers’ compensation benefits, both the superior court and this Court are required to construe the evidence in a light most favorable to the party prevailing before the State Board.” (Citation and punctuation omitted.) YKK (USA), Inc. v. Patterson, 287 Ga. App. 537 (652 SE2d 187) (2007). So viewed, the evidence showed that Wilson worked as a clinical technician for Hughston Orthopedic Hospital, taking vital signs, making beds, and assisting with patient baths. In May 2006, Wilson was assigned to a hospital floor where new wallpaper was being installed. On two occasions, Wilson felt sick from the fumes from the wallpaper glue and primer, but she was able to keep working. On May 25, 2006, however, the fumes left her unable to breathe and again feeling sick. Wilson was taken to the emergency room, where she fainted and was admitted to the hospital for further observation. According to Wilson, when she regained consciousness, she exhibited signs of brain injury, including that she could not talk, could not walk, and had a headache. During her hospital stay, however, Wilson underwent a battery of tests, all of which revealed normal brain functioning.

Following her discharge from the hospital, Wilson never returned to work. She saw numerous doctors, complaining of headaches, fainting episodes, dizziness, and difficulty speaking. Several follow-up neurological assessments and tests continued to show normal brain functioning. A neurologist who evaluated Wilson concluded that it was highly likely that her problems had a “psychogenic” or psychological — rather than physiological — origin. At the request of her attorney, however, Wilson consulted with another neurologist, Dr. Larry Empting. Dr. Empting, who met with Wilson one time and did not conduct any tests, concluded that Wilson had a chemical sensitivity to the wallpaper materials and that the chemical exposure at work had caused lasting neurological problems.

Contending that her exposure to the fumes from the wallpaper chemicals had resulted in permanent neurological problems, Wilson filed a workers’ compensation claim against the hospital and its insurer (the “Hospital Defendants”). The Hospital Defendants responded that Wilson’s condition was not the result of her exposure to the fumes but rather was psychogenic in nature.

Following an evidentiary hearing, an administrative law judge (“ALJ”) in the Trial Division of the State Board of Workers’ Compensation rejected Wilson’s claim for benefits in a detailed order. The ALJ, who had observed Wilson’s demeanor and conduct while testifying, noted that Wilson “stuttered in a bizarre, sporadic pattern which appeared to be feigned,” “would lapse into talking like a baby,” “would speak in a very shrill, high pitched tone at times,” and “on several occasions sounded as though she were speaking in tongues.” The ALJ found that Wilson appeared “psychiatrically disturbed” on the witness stand and concluded that her “entire testimony with its bizarre speech seemed feigned, contrived and grossly exaggerated.” The ALJ pointed to the evidence in the record reflecting that Wilson’s problems were psychogenic in origin rather than the result of chemical exposure and noted that Wilson had told a neuropsychologist that she was “seeing things” like “angels and her. dead grandmother.” Ultimately, the ALJ concluded that while Wilson may have had a temporary adverse reaction to the wallpaper chemicals, she had failed to prove by a preponderance of the evidence that her persistent symptoms and problems at issue in the case were caused by a work-related chemical exposure.

The State Board adopted the ALJ’s findings and conclusions. Wilson, however, appealed to the Superior Court of Muscogee County, which reversed the State Board. The superior court found that the State Board had misconstrued the evidence and improperly substituted its lay opinion for that of the medical experts. The superior court remanded the case to the State Board for a retrial “before a different Administrative Law Judge.” The Hospital Defendants then filed an application for discretionary appeal with this Court, which we granted.

1. The Hospital Defendants argue that the superior court erred in reversing the State Board’s decision, given the any evidence standard of review that the superior court was obligated to apply in this context. We agree.

For an accidental injury to be compensable under the Workers’ Compensation Act, the injury must arise out of and in the course of the employment. OCGA § 34-9-1 (4); St. Joseph’s Hosp. v. Ward, 300 Ga. App. 845, 848 (1) (686 SE2d 443) (2009). “An injury arises out of one’s employment where there is a causal connection between the employment and the injury.” (Citation and punctuation omitted.) Amedisys Home Health v. Howard, 269 Ga. App. 656, 657 (605 SE2d 60) (2004). See Chaparral Boats v. Heath, 269 Ga. App. 339, 340 (1) (606 SE2d 567) (2004). The claimant carries the burden of establishing causation. Lowndes County Bd. of Commrs. v. Connell, 305 Ga. App. 844, 847 (1) (a) (701 SE2d 227) (2010). “Factual questions concerning causation are properly left to the [State] Board to determine” rather than to the superior court or the appellate courts, and the Board’s findings must be affirmed if there is any evidence to support them. (Footnote omitted.) City of Atlanta v. Roach, 297 Ga. App. 408, 411 (1) (677 SE2d 426) (2009). See YKK (USA), Inc., 287 Ga. App. at 537.

Here, there was some evidence to support the State Board’s determination that Wilson’s condition was not caused by a work-related chemical exposure. The State Board found Wilson lacking in credibility, and it was not convinced by the testimony of Dr. Empting, the only physician who conclusively linked Wilson’s symptoms to chemical exposure at work. As the trier of fact, the State Board was authorized to make these determinations:

It is within the province of the [State] Board to determine the weight and credit to be given to the testimony of the witnesses, including the opinion testimony of physician witnesses, and to resolve issues of fact arising from conflicts in the evidence. Furthermore, it is well settled that opinions of medical experts are advisory only and may be accepted or rejected by the [State Board].

(Citation and punctuation omitted.) YKK (USA), Inc., 287 Ga. App. at 539 (2). See also Reynolds Constr. Co. v. Reynolds, 218 Ga. App. 23, 25 (459 SE2d 612) (1995) (fact finder may consider medical opinion testimony in the context of its own experience and completely disregard the expert opinion); Dept. of Revenue v. Graham, 102 Ga. App. 756, 759 (2) (117 SE2d 902) (1960) (“The weight and credit to be given to expert testimony is a question exclusively for decision by the fact-finding tribunal.”). Additionally, there was evidence supporting the conclusion that Wilson’s symptoms resulted from psychological problems, not a brain injury caused by chemical exposure. Numerous tests showed normal brain functioning, and at least one neurologist opined that Wilson’s condition was highly likely to be psychological in origin.

In its order reversing the State Board, the superior court took issue with the ALJ’s findings, adopted by the State Board, that Wilson’s testimony “seemed feigned, contrived and grossly exaggerated” and that she appeared “psychologically disturbed” based upon her demeanor and conduct at the hearing. According to the superior court, there was no medical evidence or other testimony in the record to support these findings. But the trier of fact clearly is entitled to observe the demeanor and conduct of a witness while testifying and take these factors into account in assessing the credibility of the witness. See McIlwain v. State, 264 Ga. 382, 383 (3) (445 SE2d 261) (1994); State v. Pettis, 306 Ga. App. 203 (702 SE2d 39) (2010). Moreover, as noted above, there was independent medical evidence in the record supporting the conclusion that Wilson suffered from a psychological rather than physiological problem. Accordingly, the superior court’s conclusions were misplaced.

Decided October 19, 2010

Reconsideration denied November 23, 2010

Wall & Elliott, Elton L. Wall, Claire Cronin, for appellants.

Morgan & Morgan, Ronald C. Conner, for appellee.

Rebecca E. Liner, amicus curiae.

For these reasons, the State Board was authorized to find that Wilson failed to meet her burden of establishing a causal connection between her condition and her employment. It is true that another factfinder might have reached a different conclusion, given Dr. Empting’s testimony. But the record did not demand such a result, and at least some evidence supported the State Board’s conclusions. Because the superior court improperly substituted itself as the factfinder in lieu of the State Board, the superior court’s decision must be reversed. See YKK (USA), Inc., 287 Ga. App. at 537. See also Harris v. Peach County Bd. of Commrs., 296 Ga. App. 225, 229 (674 SE2d 36) (2009) (“[T]he fact-finding body must in each case remain the final arbiter of the compensability of the injury and of whether the claimant’s disability arose out of the employment as well as in the course of it.”) (citation, punctuation and footnote omitted).

2. We need not address the Hospital Defendants’ remaining enumerations of error in light of our decision in Division 1.

Judgment reversed.

Barnes, P. J., and Senior Appellate Judge G. Alan Blackburn concur.

       Psychogenic means “originating in the mind or in mental or emotional conflict.” See Merriam-Webster’s Online Dictionary, http://www.merriam-webster.com/medical/psychogenic.

       Despite Wilson’s claims to the contrary, there is no indication that the ALJ and State Board misinterpreted or misconstrued Dr. Empting’s testimony. The ALJ and State Board acknowledged that Dr. Empting drew a connection between Wilson’s symptoms and work-related chemical exposure, but simply gave this testimony little or no weight.

       In its order, the superior court also noted that the AU’s decision, as adopted by the State Board, made a passing reference to the fact that Wilson had other family members who had suffered from psychological illness. The superior court concluded that the ALJ and State Board erred by improperly inferring that Wilson suffered from a psychological illness based upon her familial history. But since there was other far more significant medical evidence in the record that Wilson’s problems were psychological in origin, namely, the assessment of a neurologist who evaluated her, any improper inference drawn from the familial history was harmless. See, e.g., Bibb County v. Higgins, 241 Ga. App. 161, 163 (2) (526 SE2d 379) (1999). Compare Ga. Power Co. v. Leonard, 215 Ga. App. 383, 385 (2) (451 SE2d 74) (1994).


author: Ellington, Judge. BARNES, Presiding Judge, ANDREWS, Presiding Judge,

text:
    A10A1289.
    SMITH v. CSX TRANSPORTATION, INC.
    (703 SE2d 671)
   Ellington, Judge.

After Larry Smith slipped and fell on stairs on property owned by CSX Transportation, Inc., he brought this action against CSX in the Superior Court of Gwinnett County under the Federal Employers’ Liability Act (“FELA”). A jury returned a verdict in favor of CSX. Following the denial of his motion for a new trial, Smith appeals, contending the trial court erred in admitting evidence that, at the time he fell, he was “out of service.” In addition, he contends the trial court erred in failing to instruct the jury regarding a federal regulation that requires slip-resistant stair treads and nonslip nos-ings in the workplace. For the reasons explained below, we reverse.

The evidence shows that Smith was employed as a CSX conductor on April 6, 2004, when he went to the Terminal Administration Building in Walbridge, Ohio to attend a mandatory union safety meeting in his capacity as a local chairman. Smith took interior stairs to reach the second-floor meeting room. Smith’s foot slipped as he stepped on a stair tread that had a small puddle of liquid soap on it, and his left knee hit the edge of the step. One year later, Smith had knee surgery.

Smith sued CSX for damages pursuant to FELA, which provides a federal tort remedy for railroad employees who are injured on the job. FELA protects an employee who works for a railroad engaged in interstate commerce and whose duties affect or further the employer’s interstate transportation business whenever that employee is working within the scope of his or her employment. Activities within the scope of employment include those that are necessarily incidental to the employment, even if the employee is off duty, but not those undertaken for a private purpose and having no causal relationship with the employment. In order to recover against CSX under FELA, Smith was required to prove, inter alia, that he was protected by FELA at the time of injury; that CSX was negligent in that it breached its duty to exercise reasonable care under the circumstances to provide Smith a reasonably safe place in which to work; and that CSX’s negligence played some part in Smith’s injury.

Before trial, Smith moved in limine to exclude any evidence that CSX had disciplined him before the April 2004 incident, arguing that such evidence of bad character was irrelevant to the issue of whether FELA applies to his claim. In particular, Smith sought to exclude any evidence that on April 6, several hours before he slipped on the stairs, two supervisors observed him violate a safety rule and told him that he was “out of service.” The trial court granted the motion.

. Notwithstanding this ruling, CSX argued, in its opening statement, that

Smith should not have been there that morning. He had been taken out of service just hours before ... by company officials who told him, “You’re out of service,” which he knows means you’re not allowed to come on company property. So he should not have even been there.

On cross-examination, CSX’s counsel asked Smith whether being out of service means that the employee cannot go onto CSX property without permission. Smith responded that it does not mean that. Counsel then asked whether it was Smith’s contention that he was not taken out of service on April 6. Smith affirmatively testified that “[he] was not taken out of service” that morning. CSX’s counsel then asked Smith whether, hours before the safety meeting, two supervisors, Jim Horner and Justin Forro, told him that they had seen him dismount moving equipment, a safety rule violation. Smith admitted that they had, but testified that they did not tell him that he was out of service. In addition, he testified that they lacked the authority to take him out of service.

At the beginning of CSX’s case-in-chief, Smith moved to prohibit CSX from presenting at trial the deposition testimony of Horner and Forro. The trial court denied the motion and allowed the testimony. Employing a general verdict form, the jury found in favor of CSX.

1. Smith contends that the question of whether, at the time of injury, an employee was working in the course of his employment in interstate commerce is a question of law for the court. Further, he contends that, even if he had been taken out of service on the day he slipped, the evidence established, as a matter of law, that he was furthering CSX’s business in interstate commerce by attending the mandatory safety meeting as a local union chairman and, therefore, he is entitled to the protections of FELA. As a result, he contends, evidence that he had been taken out of service was irrelevant to any issue to be decided by the jury, and the trial court erred in admitting it. Smith contends that evidence that he committed a serious safety rule violation reflected poorly on his character and credibility and, therefore, that the trial court’s error prejudiced him. “We review a trial court’s decisions on the admissibility of evidence under an abuse of discretion standard.” (Citation and punctuation omitted.) Fuller v. Flash Foods, 298 Ga. App. 217, 220 (2) (679 SE2d 775) (2009).

As noted above, the trial court granted Smith’s motion in limine, ruling inadmissible any evidence that CSX had disciplined Smith, including evidence that hours before he slipped on the stairs on April 6, 2004, Horner and Forro told him that he was “out of service” because they had observed him violating a safety rule. When CSX’s counsel asked Smith whether he had been taken out of service that morning, however, Smith’s counsel delayed his objection to that line of questioning until after Smith affirmatively testified that Horner and Forro did not tell him that he was out of service on April 6. Under Georgia law, “[a] witness may be impeached by disproving the facts testified to by him [or her].” OCGA § 24-9-82. Although a witness may not be impeached by disproving facts that are “wholly immaterial” to the matters at issue in the case, a witness may be impeached on a collateral issue which is “indirectly material” to the matters at issue. (Citation and punctuation omitted.) Barngrover v. Hins, 289 Ga. App. 410, 412 (1) (657 SE2d 14) (2008).

We conclude that the circumstances surrounding Smith’s dispute with Horner and Forro a few hours before Smith went to the administration building to attend the safety meeting were at least indirectly material to matters at issue in this case, including whether Smith was acting within the scope of his employment when he fell. Although the favorable ruling on Smith’s motion in limine did not require him to object to evidence encompassed by his motion, we conclude that, once Smith submitted to questioning on the issue without seeking to enforce the limine ruling, he opened the door to being impeached with evidence that tended to disprove his testimony. Accordingly, the trial court did not abuse its discretion in allowing CSX to cross-examine Smith on the issue and in admitting the testimony of Horner and Forro for purposes of disproving certain facts to which Smith had testified. Morris v. State Farm &c. Ins. Co., 203 Ga. App. 839, 842 (9) (418 SE2d 119) (1992); Swift & Co. v. Lawson, 95 Ga. App. 35, 54-57 (6) (97 SE2d 168) (1957).

2. Smith contends the trial court erred in failing to instruct the jury, as he requested, regarding a regulation issued by the federal Occupational Safety and Health Administration (“OSHA”) that requires that stair treads be reasonably slip-resistant and that the nosings have a nonslip finish. “A requested charge should be given where it has been raised by the evidence, embraces a correct and complete principle of law, has not been substantially included in the general instructions given, and is specifically adjusted to the evidence.” (Citation and punctuation omitted.) State Farm v. Nelson, 296 Ga. App. 47, 49 (2) (673 SE2d 588) (2009).

It is the duty of the trial court to charge the jury on the law applicable to the issues where there is any evidence on which to predicate the instructions. A refusal to give a [requested] charge is error if the charge is a correct statement of the law and applicable to the issues involved.

(Citations and punctuation omitted.) Blankenship v. West Ga. Plumbing Supply, 213 Ga. App. 275, 277 (444 SE2d 596) (1994).

Generally, evidence of noncompliance with OSHA regulations is admissible as evidence of an employer’s negligence. In this case, Smith presented evidence that the nosings on the stairs in the CSX administration building where he fell were not of a nonslip finish and that, together with the soap spill, the nosings’ finish caused his fall. The trial court refused to give the requested charge, however, based on its conclusion that 29 CFR § 1910.24 does not apply to the type of building in which Smith fell, that is, an office building. This was error. OSHA’s general standards, which are set out in 29 CFR Part 1910, apply to any workplace, unless specifically excepted. 29 CFR § 1910.5 (a). See also 29 CFR § 1910.5 (c) (2). The jury instruction Smith requested is drawn from 29 CFR § 1910.24, which “contains specifications for the safe design and construction of fixed general industrial stairs.” 29 CFR § 1910.24 (a). In the context of 29 CFR Part 1910, the modifier “general industry” or “general industrial” plainly denotes that the standard has general application to any workplace and is not limited to certain industries that are subject to additional, particularized standards. Subpart D, which provides standards for “walking-working surfaces,” is such a general standard. Further, the office building in which Smith fell does not fall under an exception. See 29 CFR § 1910.5 (b). It follows that the standards for the construction of stairs provided in 29 CFR § 1910.24 apply to the building in which Smith fell.

Because the evidence presented issues for the jury to resolve regarding whether CSX violated 29 CFR § 1910.24 (f) and, in so doing, negligently caused Smith’s injuries, and because the principles were not otherwise covered in the trial court’s charge, the trial court erred in refusing Smith’s request to instruct the jury on the requirements of that regulation in relation to their consideration of Smith’s FELA claim. Blankenship v. West Ga. Plumbing Supply, 213 Ga. App. at 277 (The trial court’s failure to give a requested charge on a critical legal theory of recovery constituted substantial error and was harmful as a matter of law.). See Robertson v. Burlington Northern R. Co., 32 F3d 408, 410-411 (I) (9th Cir. 1994) (the trial court properly admitted into evidence an OSHA noise-level regulation as some evidence of the applicable standard of care in a FELA action and instructed the jury to consider the regulation in relation to all other evidence in the case); Albrecht v. Baltimore &c. R. Co., 808 F2d 329, 332 (4th Cir. 1987) (the trial court correctly charged the jury regarding OSHA regulations that the employee alleged the employer had violated, which the jury could consider as some evidence of negligence).

Judgment reversed.

Miller, C. J., and Phipps, P J., concur. Barnes, P. J., concurs and concurs specially. Andrews, P. J., Johnson and Doyle, JJ., dissent.

BARNES, Presiding Judge,

concurring specially.

Although I concur fully in Division 2 and the judgment of the majority opinion, I cannot concur in Division l. The statement that “once Smith submitted to questioning on the issue [of whether he was “out of service”] without seeking to enforce the limine ruling, he opened the door to being impeached with evidence that tended to disprove his testimony” places an obligation upon Smith which does not exist in our law.

In Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 285 (1), n. 1 (260 SE2d 20) (1979), our Supreme Court held that no objection is necessary at trial to preserve the denial of the motion in limine for appeal:

The purpose in filing a motion in limine to suppress evidence or to instruct opposing counsel not to offer it is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury with respect to matters which have no proper bearing on the issues in the case or on the rights of the parties to the suit. It is the prejudicial effect of the questions asked or statements made in connection with the offer of the evidence, not the prejudicial effect of the evidence itself, which the motion in limine is intended to reach.

(Citation and punctuation omitted.)

Our Supreme Court later made clear that this reasoning also applies when a motion in limine is granted.

To hold otherwise, and require the successful movant to object when evidence encompassed by the motion in limine is nevertheless offered at trial, would defeat the purpose of the motion in limine, as the movant would be forced, in the presence of the jury, to call special attention to prejudicial evidence which the trial court had previously ordered to be excluded from the jury’s consideration.

Reno v. Reno, 249 Ga. 855, 856 (1) (295 SE2d 94) (1982). Therefore, Smith was not required to seek to “enforce the limine ruling” and his failing to object or otherwise seek to enforce the grant of his motion could not open the door to the questioning by CSX.

Accordingly, I concur fully in Division 2 and the judgment of the majority opinion, but not in Division 1.

ANDREWS, Presiding Judge,

dissenting.

Larry Smith brought a slip and fall claim against his employer, CSX Transportation, Inc., seeking damages under the Federal Employer’s Liability Act (FELA). On appeal from the judgment entered on the jury verdict rendered against his claim, he enumerates two errors, neither of which has merit.

First, he claims: “The trial court erred in allowing the jury to hear evidence of, and determine whether, Plaintiff was out of service because, as a matter of law Plaintiff was within the broad scope of protection of the FELA, 45 U. S. C. § 51 et seq.” Smith complains that the trial court erred by allowing evidence to be introduced at trial about whether or not CSX had placed him “out of service” — in other words relieved him of his work duties — at the time of his slip and fall injury on stairs located in a CSX office building. He contends that, at the time of his injury, evidence showed as a matter of law that he was covered by FELA, and that evidence regarding whether he was “out of service” may have erroneously caused the jury to find that he was not covered by FELA.

Prior to trial, Smith filed a motion in limine seeking to exclude evidence of “past railroad discipline” against him, one example of which was evidence that, the day prior to his injury, CSX claimed to have placed him “out of service” because he violated a rule related to his employment. Although the trial court granted the motion in limine, Smith introduced evidence in his case-in-chief raising the issue of whether he had been placed “out of service” by CSX, and whether “out of service” meant that he was prohibited from going on CSX property, or was prohibited from attending the union safety meeting on CSX property at which he was injured. Prior to introducing this evidence, Smith’s counsel engaged in colloquy with the trial judge over the scope of the judge’s ruling on the motion in limine. Smith’s counsel stated that, “I think what we discussed in the motions in limine is that the specific discipline was not relevant to what happened. . . . What’s relevant is they claim they took him out of service, and that’s fine. They can argue that we saw him violating a rule and took him out of service.” Thereafter, Smith testified on direct examination about the “out of service” issue, including testimony that no one at CSX told him he was “out of service,” and that, even if he had been “out of service,” that did not affect his right to be engaged in a work-related activity in the CSX office building by attending the union safety meeting at which he was injured. When defense counsel cross-examined Smith on this testimony, Smith’s counsel objected on the basis that the “out of service” issue was not relevant. The trial court properly overruled the objection. Given his counsel’s concession about the scope of the motion in limine ruling, and the testimony Smith himself gave on the “out of service” issue, Smith cannot complain that the trial court erred by allowing CSX to cross-examine him and present evidence concerning this issue. Bd. of Regents &c. v. Ambati, 299 Ga. App. 804, 808 (685 SE2d 719) (2009); T & M Investments v. Jackson, 206 Ga. App. 218, 220 (425 SE2d 300) (1992).

Second, Smith claims that the trial court erred by refusing to give the following jury charge:

Plaintiff contends the Defendant Railroad did not comply with O. S. H. A. 29 C. F. R. 1910.24 (f), which demands, “Stair treads. All treads shall be reasonably slip-resistant and the nosings shall be of nonslip finish. Welded bar grating treads without nosings are acceptable providing the leading edge can be readily identified by personnel descending the stairway and provided the tread is serrated or is of definite nonslip design. Rise height and tread width shall be uniform throughout any flight of stairs including any foundation structure used as one or more treads of the stairs.”
I charge you that if you believe from the evidence that the Defendant Railroad violated this regulation, then you may consider this violation as evidence of negligence on the part of the Defendant Railroad and a failure of the Defendant Railroad to provide a reasonably safe place to work.

The above request to charge was based on Smith’s contention that the stairs on which he slipped and fell, located in a CSX office building, were governed by subsection (f) of the Occupational Safety and Health Act (OSHA) standard entitled “Fixed industrial stairs” set forth in 29 CFR § 1910.24, and that CSX’s violation of this standard was evidence of its negligence.

OSHA standards may be categorized into four broad subject areas: General Industry Standards [in 29 CFR Part 1910]; Maritime and Longshoring Standards [in 29 CFR Parts 1915 and 1918]; Construction Standards [in 29 CFR Part 1926]; and Agricultural Standards [in 29 CFR Part 1928],

Mark A. Rothstein, Occupational Safety and Health Law, § 4:1 (West 2009). 29 CFR § 1910.24 is found in a subpart of the General Industry Standards titled “Subpart D: Walking-Working Surfaces,” set forth in 29 CFR §§ 1910.21 to 1910.30. The complete OSHA standard for “Fixed industrial stairs” is set forth in 29 CFR § 1910.24 subsections (a) through (i) and provides the following:

(a) Application of requirements. This section contains specifications for the safe design and construction of fixed general industrial stairs. This classification includes interior and exterior stairs around machinery, tanks, and other equipment, and stairs leading to or from floors, platforms, or pits. This section does not apply to stairs used for fire exit purposes, to construction operations to private residences, or to articulated stairs, such as may be installed on floating roof tanks or on dock facilities, the angle of which changes with the rise and fall of the base support.
(b) Where fixed stairs are required. Fixed stairs shall be provided for access from one structure level to another where operations necessitate regular travel between levels, and for access to operating platforms at any equipment which requires attention routinely during operations. Fixed stairs shall also be provided where access to elevations is daily or at each shift for such purposes as gauging, inspection, regular maintenance, etc., where such work may expose employees to acids, caustics, gases, or other harmful substances, or for which purposes the carrying of tools or equipment by hand is normally required. (It is not the intent of this section to preclude the use of fixed ladders for access to elevated tanks, towers, and similar structures, overhead traveling cranes, etc., where the use of fixed ladders is common practice.) Spiral stairways shall not be permitted except for special limited usage and secondary access situations where it is not practical to provide a conventional stairway. Winding stairways may be installed on tanks and similar round structures where the diameter of the structure is not less than five (5) feet.
(c) Stair strength. Fixed stairways shall be designed and constructed to carry a load of five times the normal live load anticipated but never of less strength than to carry safely a moving concentrated load of 1,000 pounds.
(d) Stair width. Fixed stairways shall have a minimum width of 22 inches.
(e) Angle of stairway rise. Fixed stairs shall be installed at angles to the horizontal of between 30 (degrees) and 50 (degrees). Any uniform combination of rise/tread dimensions may be used that will result in a stairway at an angle to the horizontal within the permissible range. Table D-l gives rise/tread dimensions which will produce a stairway within the permissible range, stating the angle to the horizontal produced by each combination. However, the rise/tread combinations are not limited to those given in Table D-l.
[Table D-l omitted]
(f) Stair treads. All treads shall be reasonably slip-resistant and the nosings shall be of nonslip finish. Welded bar grating treads without nosings are acceptable providing the leading edge can be readily identified by personnel descending the stairway and provided the tread is serrated or is of definite nonslip design. Rise height and tread width shall be uniform throughout any flight of stairs including any foundation structure used as one or more treads of the stairs.
(g) Stairway platforms. Stairway platforms shall be no less than the width of a stairway and a minimum of 30 inches in length measured in the direction of travel.
(h) Railings and handrails. Standard railings shall be provided on the open sides of all exposed stairways and stair platforms. Handrails shall be provided on at least one side of closed stairways preferably on the right side descending. Stair railings and handrails shall be installed in accordance with the provisions of § 1910.23.
(i) Vertical clearance. Vertical clearance above any stair tread to an overhead obstruction shall be at least 7 feet measured from the leading edge of the tread.

“In determining the application of a standard, the wording of the standard must be interpreted in a reasonable manner, consistent with common sense understanding. The words in a standard are to be viewed in context, not in isolation, and judged in light of its application to the facts of the case.” (Citation omitted.) Secretary of Labor v. Spirit Homes, 2002 WL 31163770, *7 (OSHRC, Docket Nos. 00-1807; 00-1808, ALJ, Sept. 30, 2002). The OSHA standard for “Fixed industrial stairs” is part of the OSHA standards regulating General Industry in 29 CFR Part 1910. CSX operates in the railroad industry in interstate commerce and is subject to OSHA, the purpose of which is

to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources ... by encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment [and] by authorizing the Secretary of Labor to set mandatory occupational safety and health standards applicable to businesses. . . .

29 USC § 651 (b) (1), (3); Southern Pacific Transp. Co. v. Usery, 539 F2d 386 (5th Cir. 1976). The OSHA standard at 29 CFR § 1910.24 advances this purpose by requiring specialized design and construction specifications for “Fixed industrial stairs” to protect employees whose occupations expose them to recognizable industrial hazards in the workplace. Undoubtedly, parts of CSX’s railroad business subjects employees to industrial hazards which the “Fixed industrial stairs” standard is intended to protect against. But the injury in this case occurred when Smith slipped on stairs located in a CSX administration office building. There was no evidence that any industrial hazard existed at the office building that would have required CSX to construct “Fixed industrial stairs” to the specifications set forth in 29 CFR § 1910.24 in order to protect its employees from those hazards. See Secretary of Labor v. Williams & Davis Boilers, Inc., 1980 WL 10408, *11 (OSHRC, Docket No. 79-3817, ALJ, Sept. 19, 1980) (finding that stairs leading to an office and stockroom at a business were “ordinary building stairs” governed not by “Fixed industrial stairs” requirements but by general stairway standards in 29 CFR § 1910.23 (d)). There was also no evidence that CSX was cited for violation of the OSHA standard for “Fixed industrial stairs.” Viewed in context, common sense dictates that the OSHA standard for “Fixed industrial stairs” did not apply to the facts of this case, and that the trial judge correctly refused to give the requested jury charge. I respectfully dissent.

Decided October 25, 2010

Reconsideration denied November 23, 2010

Michael J. Warshauer, Douglas C. Dumont, for appellant.

Casey Gilson, James E. Gilson, Karen R. Dunbar, for appellee.

I am authorized to state that Judge Johnson and Judge Doyle join in this dissent.

       45 USC § 51 et seq.

       A nosing is “[t]hat portion of a tread projecting beyond the face of the riser immediately below.” 29 CFR § 1910.21 (b) (2).

        Kossman v. Northeast Illinois Regional Commuter R., 211 F3d 1031, 1035 (III) (A) (7th Cir. 2000). See Neal v. CSX Transp., 213 Ga. App. 707, 708 (1) (445 SE2d 766) (1994) (Because CSX maintains its registered office and registered agent for service in Gwinnett County, venue of a state court FELA action is proper there.).

        Hardyman v. Norfolk &c. R. Co., 243 F3d 255, 258-259 (II) (6th Cir. 2001); Moore v. Chesapeake &c. R. Co., 649 F2d 1004, 1008 (2) (4th Cir. 1981); Fowler v. Seaboard Coastline R. Co., 638 F2d 17, 20 (5th Cir. 1981).

        Rostocki v. Consolidated Rail Corp., 19 F3d 104, 106 (2d Cir. 1994); Baker v. Baltimore &c. R. Co., 502 F2d 638, 642 (6th Cir. 1974). See Fowler v. Seaboard Coastline R. Co., 638 F2d at 20 (“[T]he proper test for scope of employment in an FELA case [is] whether the act was one which the employer might reasonably have foreseen and which the employee might reasonably have thought necessary in the interest of or in the benefit of the employer.”).

        Hardyman v. Norfolk &c. R. Co., 243 F3d at 258-259 (II); Kossman v. Northeast Illinois Regional Commuter R., 211 F3d at 1035-1036 (III) (A).

       Although we have concluded that Smith is entitled to a new trial for the reasons explained in Division 2, infra, this evidentiary issue may recur and, therefore, we address this claim of error here.

       See Reno v. Reno, 249 Ga. 855, 855-856 (1) (295 SE2d 94) (1982) (Where a trial court grants a motion in limine to exclude certain evidence, and the nonmovant violates the order by nevertheless offering evidence encompassed by the motion in limine, the movant need not object in order to preserve the issue for appellate review.); Scott v. Chapman, 203 Ga. App. 58, 59 (1) (416 SE2d 111) (1992) (accord).

       In full, Smith requested the following charge:
      Plaintiff contends the Defendant Railroad did not comply with OSHA 29 CPR § 1910.24 (f), which demands,
      Stair treads. All treads shall be reasonably slip-resistant and the nosings shall be of nonslip finish. Welded bar grating treads without nosings are acceptable providing the leading edge can be readily identified by personnel descending the stairway and provided the tread is serrated or is of definite nonslip design. Rise height and tread width shall be uniform throughout any flight of stairs including any foundation structure used as one or more treads of the stairs.
      I charge you that... if you believe from the evidence that the Defendant Railroad violated this regulation, then you may consider this violation as evidence of negligence on the part of the Defendant Railroad and a failure of the Defendant Railroad to provide a reasonably safe place to work.

       See Smoky, Inc. v. McCray, 196 Ga. App. 650, 655-656 (5) (396 SE2d 794) (1990) (Although “it is not error for the trial court to refuse to give a requested charge in the precise language requested where the principles embodied therein are substantially covered by the charge!,)” the issue of whether a requested charge is substantially covered by a standardized charge of the general principles involved should be evaluated “from the perspective of the average juror, unschooled in law and hence unable to grasp all the shades and nuances which the law may present in an individual case solely from an abbreviated discussion of the ‘general principles’ involved!, because] it is the jury, not the trial court or the appellate courts, that applies the law[.]”) (citations, punctuation and emphasis omitted).

        Dupree v. Keller Indus., 199 Ga. App. 138, 141 (1) (404 SE2d 291) (1991) (“OSHA regulations are admissible not merely as standards of performance, but as evidence of legal duty, violation of which may give a cause of action under OCGA § 51-1-6.”) (citation and punctuation omitted); Cardin v. Telfair Acres of Lowndes County, 195 Ga. App. 449, 450 (2) (393 SE2d 731) (1990) (accord); Ries v. Nat. R. Passenger Corp., 960 F2d 1156, 1165 (III) (3d Cir. 1992) (Although “OSHA is not a safety statute under the FELA, [and, therefore,] a violation of an OSHA regulation could not constitute negligence per se and bar contributory negligence[, . . . the defendant employer’s] violation of [an] OSHA regulation was properly admissible as evidence of [the employer’s] negligence!.]”). We note that some state and federal courts have determined that a violation of an OSHA regulation may constitute negligence per se. See, e.g., Pratico v. Portland Terminal Co., 783 F2d 255, 265-267 (IV) (1st Cir. 1985) (“[A] violation of an OSHA regulation can be considered negligence per se [when] there [is] an independent cause of action established by either state or federal law which establishes the right of an employee to be free from negligence, the duty of the employer to take reasonable precautions, and the liability of the employer for injuries caused by the failure to take reasonable precautions.”); see also John E Ludington, “Violation of OSHA regulation as affecting tort liability,” 79 ALR3d 962 (1977, updated weekly).

       One witness testified that the nosings were “vinyl” and “slippery”; another testified that they were smooth vinyl; and Smith testified that they were smooth and not covered in slip-resistant material.

       Smith testified that, if the nosing had been made of a different material, he would not have fallen “because the edging would’ve caught [his] boots.”

       See, e.g., construction, in 29 CFR § 1910.12; shipyards, in 29 CFR § 1910.15; longshoring and marine terminals, in 29 CFR § 1910.16; paper mills, in 29 CFR § 1910.261; electric power plants, in 29 CFR § 1910.269; etc.); see also 29 CFR § 1910.5 (c) (providing for circumstances when a particular OSHA standard preempts a general standard); Brock v. Williams Enterprises, 832 F2d 567, 570 (II) (A) (11th Cir. 1987) (“A general standard setting forth measures that an employer must take to protect employees from a particular hazard is not preempted by a specific standard unless that specific standard addresses the same particular hazard as the general standard.”) (citation omitted).

       There being no majority concurring in Division 1, it may not be cited as binding precedent. Court of Appeals Rule 33 (a).

       29 CFR § 1910.23 (d) contains general standards for stairway railings and guards.

       The Occupational Safety and Health Review Commission (OSHRC) is the body charged with adjudicating citations issued by the Secretary of Labor under OSHA. Indus. Union Dept., AFL-CIO v. American Petroleum Institute, 448 U. S. 607, 683 (100 SC 2844, 65 LE2d 1010) (1980) (Rehnquist, J., concurring).


author: Phipps, Presiding Judge.

text:
    A10A1343.
    MILLIGAN v. THE STATE.
    (703 SE2d 1)
   Phipps, Presiding Judge.

After a jury trial, Dana Jerry Milligan was convicted of possession of methamphetamine with intent to distribute and misdemeanor obstruction of a law enforcement officer. On appeal, he contends that the court erred in admitting certain evidence, in excluding him from a charge conference, in referring to “admissions” in a jury charge, and in the manner in which it responded to announcements from the jury that it could not reach a verdict on possession with intent to distribute. For the reasons set forth below, we affirm.

1. Milligan argues that the court erred in admitting evidence that he had previously pleaded guilty to possession of methamphetamine with intent to distribute, on the ground that the court failed to weigh its prejudicial impact against its probative value. But Milligan did not object to the evidence on this ground at a pretrial hearing concerning its admission. He also did not assert this ground as the basis of his objection to its admission at trial. Instead, he objected to the evidence for a different reason — an alleged discovery violation — not raised on appeal. Because Milligan failed to raise, either at the pretrial hearing or at trial, the objection that he now asserts on appeal, he has waived appellate review of this assertion.

2. Milligan argues that the court violated his right to be present at all proceedings against him when it excluded him from a charge conference that occurred during jury deliberations.

In the course of deliberations the jury asked to read a transcript of a recording that had been played during trial. After an unreported bench conference with counsel, the court stated to the jury, “I am going to get with the attorneys and we are going to try to write an appropriate charge that I hope will help you in this matter.” The jury retired, and the court said, “Let’s step back to the conference room.” The record reflects that a recess was taken. The record next reflects that the jury returned to the courtroom and the court gave additional jury charges, including a charge that the recording was evidence but the transcript thereof was not evidence.

A defendant’s “right to be present attaches at any stage of a criminal proceeding that is critical to its outcome if the defendant’s presence would contribute to the fairness of the procedure.” The Supreme Court of Georgia has held that a charge conference is not a stage of a criminal proceeding invoking this right to be present. Accordingly, we find no error in the court holding this conference outside Milligan’s presence.

3. Milligan contends that the court improperly commented upon the evidence during the final charge by instructing:

On the other hand, if you believe the state has not proven his guilt beyond a reasonable doubt or if you have a reasonable doubt as to his guilt, it would be your duty to find him not guilty. However, you have heard the evidence and arguments of both the State and the defense and admissions and so forth made during the course of the trial.

Milligan argues that the court’s use of the word “admissions” in this charge “mischaracterize[d] the evidence by attributing an admission to [him], when he did not testify, [and] can only be regarded as an expression of opinion by the trial court of the evidence in the case.” Although Milligan did not testify, a law enforcement officer testified to a custodial statement that Milligan made regarding methamphetamine found on his person, and a recording of a custodial statement made by Milligan was admitted and played to the jury.

Under OCGA § 17-8-57, “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” In determining whether an excerpt from a charge violated this Code section, we review the charge as a whole. OCGA § 17-8-57 is violated only when the court’s charge assumes certain things as facts and intimates to the jury what the judge believes the evidence to be.

In its final charge, the court instructed the jury on how to consider evidence of any custodial statements made by Milligan. It charged that the jury could not consider statements made by Milligan as evidence unless it first determined that Milligan was informed of his constitutional rights, that he clearly understood those rights, and that he knowingly gave up those rights in making the statements. The court further charged that, if the jury considered the statements as evidence, the jury was required to determine the believability of the witness and the weight to be given the statements. Reviewing the challenged portion of the charge in the context of the charge as a whole, we conclude that the trial court’s use of the term “admissions” did not assume facts or intimate an opinion relating to the custodial statements made by Milligan. Thus, we find that no violation of OCGA § 17-8-57 occurred.

4. During deliberations, the court received a series of notes from the jury indicating that it could not reach a verdict on the charge of possession with intent to distribute. The court ultimately gave the jury an Allen charge, after which the jury returned a verdict of guilty as to this offense.

(a) One note from the jury stated that there were “11 votes for guilty of possession of methamphetamine with intent to distribute and one vote of possession of methamphetamine with no chance of a change.” Citing Cantrell v. State, Milligan contends on appeal that, after receiving this note, the court “should have instructed the jury that the numerical count indicate [d] a finding of guilt of the lesser included offense” of possession of methamphetamine. He did not, however, request this instruction or otherwise raise this issue at trial and consequently he did not preserve this issue for appellate review, notwithstanding his inclusion of it in his motion for new trial.

(b) Milligan argues that the court erred in giving the Allen charge. Although he did not object to this charge at trial, he reserved the right to object to the final charge and later raised the issue in his motion for new trial.

The decision to give an Allen charge is within the trial court’s discretion. “The issue in reviewing an Allen charge is whether the instruction is coercive so as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.”

Milligan does not argue that the specific language of the charge was coercive, and the Supreme Court of Georgia has found that language similar to that given in this case was not coercive. Moreover, the only circumstance cited by Milligan to support his argument that the charge was coercive was his assertion that “the jury [was] not deadlocked as to the lesser offense” of possession of methamphetamine. But the case Milligan cites for this proposition, Wells v. State, does not support his argument. In Wells, we held that the court’s instructions to a deliberating jury concerning its reported deadlocked status on certain counts constituted a substantive communication at a critical stage in a defendant’s criminal prosecution, at which the defendant had the right to be present. We did not address in Wells what circumstances would render an Allen charge coercive.

Furthermore, the record does not reveal circumstances compelling a finding that the Allen charge in this case coerced the jury into reaching its verdict that Milligan was guilty of possession of methamphetamine with intent to distribute. The record shows that the jury sent four notes to the court indicating its inability to reach a verdict, three on the first day of deliberations and one on the second day, and that it reached its verdict on the second day of deliberations. Although the record reflects that the jury deliberated over a period of two days, it does not more specifically indicate how many hours the jury deliberated before or after sending these notes to the court, nor does it more specifically indicate how many hours the jury deliberated before or after receiving the Allen instruction. And it cannot be said that the verdict was coerced simply because the trial court gave an Allen charge after the jury revealed its numerical division. Although, in certain of its notes, the jury foreperson stated that a juror “refuses to change his/her mind” and expressed her belief that “[t]here will not be a verdict reached,” the trial court “was not bound by those pronouncements. On the contrary, the trial court, in the exercise of a sound discretion, was required to make its own determination as to whether further deliberations were in order.” Milligan has demonstrated no abuse of that discretion here.

Judgment affirmed.

Miller, C. J., and Johnson, J., concur.

On Motion for Reconsideration.

Milligan has moved for reconsideration of our decision, focusing on our ruling in Division 3. In his motion, he presents a new argument for the reversal of his conviction, which was not contained in his appellate brief. In that brief, Milligan argued that a jury charge violated OCGA § 17-8-57 because it constituted an expression of the trial judge’s opinion that a statement made by Milligan was an “admission.” On motion for reconsideration, Milligan argues for the first time that the same jury charge violated OCGA § 17-8-57 because, by including the word “however,” the charge constituted an expression of the judge’s opinion that the state satisfied its burden of proving Milligan’s guilt beyond a reasonable doubt.

Court of Appeals Rule 37 (e) provides for the granting of a motion for reconsideration “only when it appears that the Court overlooked a material fact in the record, a statute or a decision which is controlling as authority and which would require a different judgment from that rendered, or has erroneously construed or misapplied a provision of law or a controlling authority.” Milligan contends that “[by] focusing on the word ‘admissions’ and addressing the law of admissions this Court has overlooked the impact of the inserted adverb ‘however.’ ” But in his appellate brief, Milligan neither argued to this Court that the inclusion of the word “however” rendered the jury charge a statement of opinion by the trial judge, nor set forth the opinion that he now alleges the judge expressed. We deny the motion for reconsideration.

Decided September 10, 2010

Reconsideration denied November 23, 2010

Billy L. Spruell, for appellant.

Lee Darragh, District Attorney, Alison W. Toller, Assistant District Attorney, for appellee.

Motion for reconsideration denied.

       See Hunter v. State, 202 Ga. App. 195, 197-198 (3) (413 SE2d 526) (1991) (objection at pretrial hearing to admission of evidence for one reason did not preserve for appellate review argument that evidence should not have been admitted for a different reason); see also Dyer v. State, 287 Ga. 137, 143 (9) (695 SE2d 15) (2010) (where defendant failed to object at trial to admission of evidence, his subsequent objection made in motion for new trial did not preserve the issue for appellate review).

       See Lowery v. State, 282 Ga. 68, 73 (4) (b) (646 SE2d 67) (2007) (within the Georgia constitutional right to the courts, set forth in Ga. Const. of 1983, Art. I, Sec. I, Par. XII, is a criminal defendant’s right to be present and see and hear all proceedings which are had against him on the trial before the court).

        Lowery, supra at 74 (4) (b) (i) (citation and punctuation omitted).

       Id.; McCulley v. State, 275 Ga. 473, 476 (2) (569 SE2d 507) (2002); Huff v. State, 274 Ga. 110, 111-112 (2) (549 SE2d 370) (2001).

       See Lowery, supra; Huff, supra.

       (Emphasis supplied.)

        Jones v. State, 268 Ga. 12, 15 (5) (483 SE2d 871) (1997).

        Mullinax v. State, 255 Ga. 442, 445 (4) (339 SE2d 704) (1986) (citations omitted).

       See id. (irrespective of whether “slayer” connotes malice, trial judge’s use of that word, when considered within context, did not constitute opinion concerning the evidence so as to violate OCGA § 17-8-57).

       See Allen v. United States, 164 U. S. 492, 501-502 (9) (17 SC 154, 41 LE 528) (1896).

       266 Ga. 700 (469 SE2d 660) (1996).

       See Manley v. State, 284 Ga. 840, 847 (4) (672 SE2d 654) (2009) (applying contemporaneous objection rule to claim that court erred in responding to note from jury); Martin v. State, 281 Ga. 778, 780 (2) (642 SE2d 837) (2007) (objection set forth in amended motion for new trial was not contemporaneous and did not preserve issue for appellate review).

       At the time of Milligan’s trial in 2003, a criminal defendant was allowed to reserve his objections to jury instructions. See Pruitt v. State, 282 Ga. 30, 33 (2), n. 2 (644 SE2d 837) (2007). “The law with respect to the preservation of error with regard to jury instructions in criminal cases changed with the enactment of OCGA § 17-8-58, effective July 1, 2007.” Loadholt v. State, 286 Ga. 402, 405 (3), n. 3 (687 SE2d 824) (2010). OCGA § 17-8-58 (a) now requires a criminal defendant to “inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.”

        Lowery, supra at 75 (4) (b) (ii).

       Id. at 71 (4) (a) (citation and punctuation omitted).

        Sears v. State, 270 Ga. 834, 838 (1) (514 SE2d 426) (1999).

       See id. at 837 (whether a verdict resulted from coercion depended upon the totality of the circumstances).

       297 Ga. App. 153 (676 SE2d 821) (2009).

       Id. at 160 (2).

       See generally Nowill v. State, 271 Ga. App. 254, 259 (5) (609 SE2d 188) (appellant bears the burden of proving error affirmatively by the record).

       The jury also sent other notes to the court containing questions.

       Compare Sears, supra at 837-838 (considering the number of hours the jury deliberated before and after receiving Allen instruction as part of totality of circumstances in assessing whether instruction was coercive).

       Id. at 838. As the Supreme Court of Georgia has noted, however, trial courts should not inquire into the nature of a jury’s numerical division, and they are encouraged to inform jurors not to reveal that information. Id. at 838, n. 1.

       Id. (citation omitted).


author: PHIPPS, Presiding Judge.

text:
    A10A1584.
    SOWERBY et al. v. DOYAL.
    (703 SE2d 326)
   PHIPPS, Presiding Judge.

This case involves a legal malpractice action that Marsha Doyal brought against her former attorney, Vincent D. Sowerby, and his law firm, The Law Office of Vincent D. Sowerby, EC. Sowerby and the law firm moved to dismiss the action on the ground that it was barred by the statute of limitation. Doyal responded that the limitation period had been tolled by fraud. The trial court denied the motion, and we granted interlocutory review. For the following reasons, the limitation period was not tolled, and the statute of limitation barred the action. Accordingly, we find that the trial court erred in denying the motion, and we reverse.

The record shows that the trial court considered matters outside the complaint in ruling on the motion and that the court and parties treated the motion as one for summary judgment. We review the denial of a defendant’s motion for summary judgment de novo, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.

So viewed, the evidence showed that Sowerby and the law firm represented Doyal in a domestic proceeding in which a contempt order was issued. Sowerby attempted to appeal that order in the Supreme Court of Georgia, but failed to follow the required discretionary application procedure. In early February 2005, Sowerby told Doyal that the appeal likely would be dismissed for this procedural deficiency, provided her with contact information for his professional liability insurance carrier, and advised her to seek other counsel regarding a potential claim against him. Doyal deposed that, based on her conversation with Sowerby, she was aware in February 2005 that she had a potential claim against him.

On February 21, 2005, the Supreme Court of Georgia dismissed Doyal’s appeal from the contempt order based on her failure to follow the discretionary application procedure. On February 25, 2005, Sowerby sent a letter to Doyal that included the following paragraph:

Enclosed please find your copy of an order of the Supreme Court of Georgia dated February 21, 2005 dismissing the appeal of the . . . contempt. This is the date upon which the Statute of Limitations begins to run on any claim you may have against me for negligence in filing the Notice of Appeal instead of an Application for Discretionary Review. A Statute of Limitation is a law which requires a plaintiff to file a lawsuit within a certain time period or lose automatically for waiting too long to sue. Although there are exceptions, an action asserting negligence has a Statute of Limitation of two years and an action asserting breach of contract gets four years. Whether you have two years or four years to sue me is a matter upon which I cannot advise you.

Sowerby deposed that, when he wrote the letter, although he had not researched the issue, he thought February 21, 2005 was the date the statute of limitation began to run on Doyal’s professional negligence claim, because that was the date Doyal’s appeal was dismissed. In fact, the date Sowerby provided in the letter was incorrect. The applicable limitation period did not begin to run on the date the Supreme Court of Georgia dismissed Doyal’s appeal, but instead began to run on the date Sowerby committed the act of legal malpractice. That date was July 16, 2004, the last day upon which he could have filed on Doyal’s behalf an application for discretionary review of the contempt order, which was entered on June 16, 2004.

Doyal spoke with Sowerby’s insurance carrier several times regarding her malpractice claim. She also obtained other counsel, who on July 7, 2005, sent a demand letter to the insurance carrier regarding the claim. This attorney subsequently withdrew from representing Doyal, however, and she spoke with several other attorneys in unsuccessful attempts to secure representation on her claim against Sowerby.

On July 10, 2008, within the four-year limitation period applicable to her action, Doyal filed a pro se action against Sowerby in which she alleged that he had committed legal malpractice. But Doyal did not attach an expert affidavit to her complaint, and Sowerby moved to dismiss the action on that ground. Doyal subsequently dismissed her action.

On February 18, 2009, Doyal filed the instant action against Sowerby and the law firm, attaching thereto an expert affidavit. When Sowerby and the law firm moved to dismiss the action as time-barred, Doyal argued that Sowerby’s representation in the February 25, 2005 letter concerning the date upon which the limitation period began to run constituted fraud that tolled the running of the limitation period. The trial court denied the motion, finding that a factual question existed concerning Sowerby’s intent to defraud Doyal.

Because Doyal filed her second complaint more than four years after her cause of action accrued, she was required, to avoid summary judgment, to come forward with some evidence to demonstrate that a material issue of fact existed that the running of the statute of limitation had been tolled. OCGA § 9-396 provides, in pertinent part, that “[i]f the defendant [is] guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff s discovery of the fraud.” A plaintiff must show that the fraud deterred her from bringing suit.

Decided October 22, 2010

Reconsideration denied November 23, 2010

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Terry L. Readdick, for appellants.

Thus, in Columbia County v. Branton the tolling provision of OCGA § 9-3-96 did not apply where, despite the defendants’ alleged fraud, the record showed that the plaintiff was aware of the facts that he contended gave rise to his claims. Like the plaintiff in Columbia County, Doyal cannot show fraud to overcome the defense that her claim was time-barred because the undisputed evidence showed that she discovered her potential cause of action against Sowerby and the firm within the limitation period. She deposed that, as early as February 2005, Sowerby had made her aware of the cause of action. Indeed, before the limitation period expired she spoke with representatives of Sowerby’s malpractice insurer about her claim; arranged for counsel to issue a demand letter to the insurer for damages; sought legal representation to file suit on the claim; and filed a pro se action against Sowerby asserting the cause of action.

Under these circumstances we find no evidence to support Doyal’s argument that fraud on the part of Sowerby or the law firm deterred her from bringing her action so as to toll the limitation period. We are not convinced by Doyal’s contention that, even though she knew of her cause of action and brought her first suit against Sowerby within the applicable limitation period, the allegedly fraudulent statement regarding the statute of limitation nevertheless tolled the limitation period under OCGA § 9-3-96 such that her second suit was timely.

Accordingly, the statute of limitation barred Doyal’s claim, and the trial court erred in denying summary judgment to Sowerby and the firm.

Judgment reversed.

Miller, C. J., and Johnson, J., concur.

Oliver Maner, Inman G. Hodges, William J. Hunter, for appellee.

       See Hoffman v. PMC Dev. Co., 238 Ga. 258 (232 SE2d 541) (1977).

        Talbot County Bd. of Commrs. v. Woodall, 275 Ga. 281 (1) (565 SE2d 465) (2002).

       See OCGA § 5-6-35 (a) (2) (requiring appeals from orders in domestic relations cases, including contempt orders, to be taken pursuant to application procedures set forth in OCGA § 5-6-35).

       (Emphasis supplied.)

       See Hunter, Maclean, Exley & Dunn, P.C. v. Frame, 269 Ga. 844, 845 (507 SE2d 411) (1998) (generally, statute of limitation for legal malpractice action runs from date of alleged incident of malpractice); see also Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804, 806 (1) (273 SE2d 16) (1980); Villani v. Hughes, 279 Ga. App. 618, 619 (3) (631 SE2d 709) (2006).

       See OCGA § 5-6-35 (d) (requiring application for discretionary review to be filed within 30 days of the entry of the contested order).

       See Villani, supra.

       See OCGA § 9-11-9.1 (a) (requiring plaintiff bringing action alleging legal malpractice to file with the complaint an expert affidavit).

       See Douglas Kohoutek, Ltd. v. Hartley, Rowe & Fowler, P.C., 247 Ga. App. 422, 423 (1) (543 SE2d 406) (2000).

        Hunter, Maclean, supra at 849 (1).

       304 Ga. App. 149 (695 SE2d 674) (2010).

       Id. at 154 (2).

       See Columbia County, supra; see also Bryant v. Golden, 302 Ga. App. 760, 762-763 (691 SE2d 672) (2010) (alleged fraud - that accountant, while in a confidential relationship with plaintiff, actively misrepresented that he was working on income tax return and failed to inform him of penalties for filing after a certain deadline - did not toll statute of limitation on malpractice claim, where undisputed evidence showed that accountant repeatedly told plaintiff that return had not been filed and that plaintiff was aware of the consequences of filing late).

       Cf. Stewart v. Warner, 257 Ga. App. 322, 323 (571 SE2d 189) (2002) (defendants’ concealment of a fact other than the existence of the cause of action did not toll the running of the statute of limitation).


text:
    A10A1585.
    BROOKER v. BROWN.
    (703 SE2d 691)
   POPE, Senior Appellate Judge.

Leon Brooker and Lucy Brown are the unmarried parents of a two-year-old son. Following their separation, Brown was awarded primary physical custody of the child. Proceeding pro se, Brooker filed a petition for a modification in custody and child support, alleging that Brown was negligent in the care of their son and deficient in meeting his medical needs. After conducting an eviden-tiary hearing, the trial court found that there had been no material change in circumstances affecting the child’s well being since the last custody award, denied Brooker’s petition and awarded attorney fees and deposition costs to Brown. Brooker appeals, contending that the trial court erred by excluding copies of the child’s medical records and an audio recording of a telephone voice message; by declining to enforce a subpoena directing a physician to appear as a witness; and by failing to strike Brown’s testimony in its entirety on the ground that she was guilty of false swearing. Concluding that Brooker’s contentions lack any merit, we affirm.

1. As an initial matter, we note that Brooker asserts in several places in his appellate brief and reply brief that the hearing transcript is incomplete and does not accurately reflect what transpired before the trial court. “Where the transcript or record does not fully disclose what transpired [in the court below], the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41 (f).” (Citation and punctuation omitted.) Meier v. State, 190 Ga. App. 625 (1) (379 SE2d 588) (1989). See Coates v. State, 222 Ga. App. 888, 889 (2) (476 SE2d 650) (1996). As such, any challenge to the accuracy of the transcript should have been made to the trial court, which “is the final arbiter as to any differences concerning preparation of the record,” rather than to this Court. Nobles v. Prevost, 221 Ga. App. 594, 595 (472 SE2d 134) (1996).

2. Brooker argues that the trial court erred by not admitting into evidence certain copies of his son’s hospital medical records. Notably, Brooker did not make a proffer of these documents when the trial court ruled that they were inadmissible, nor did he make any attempt to identify the specific contents of the documents for the record and subsequent appellate review. Under these circumstances, “the assignment of error is so incomplete as to preclude its consideration by this [CJourt.” (Citation and punctuation omitted.) Thomas v. State, 224 Ga. App. 816, 817 (1) (482 SE2d 472) (1997). See Ford Motor Co. v. Reese, 300 Ga. App. 82, 90-91 (3) (684 SE2d 279) (2009); Sasser v. Adkinson, 258 Ga. App. 699, 699-700 (574 SE2d 907) (2002); Bagley v. CSX Transp., 219 Ga. App. 544, 547 (2) (465 SE2d 706) (1995).

3. Brooker also contends that the trial court erred by not admitting into evidence an audio recording of a telephone voice message left for him by Brown. The record shows that the trial court reserved ruling on the admissibility of the audio recording until a later stage of the hearing, but Brooker did not thereafter seek to introduce the recording or obtain a ruling on its admission. Where, as here, the trial court reserves ruling on the admissibility of evidence, the subsequent failure to invoke a ruling from that court preserves nothing for appellate review. Dasher v. State, 285 Ga. 308, 311 (4) (676 SE2d 181) (2009). See Bacon v. Decatur Fed. Sav. & Loan Assn., 169 Ga. App. 538, 539 (2) (313 SE2d 727) (1984); Macon Coca-Cola Bottling Co. v. Chancey, 101 Ga. App. 166, 172 (3) (112 SE2d 811) (1960).

4. Brooker further maintains that the trial court erred by not enforcing a subpoena directing a physician to appear as a witness at the hearing. Because Brooker never obtained a ruling by the trial court as to the enforceability of the subpoena, we likewise cannot consider this enumerated error. See Gardiner v. State, 264 Ga. 329, 334 (9) (444 SE2d 300) (1994). See also Fredericks v. Hall, 275 Ga. App. 412, 414 (3) (620 SE2d 638) (2005) (“It is the duty of counsel to obtain a ruling on his motions . . . , and the failure to do so will ordinarily result in a waiver.”) (citation and punctuation omitted).

5. Lastly, Brooker argues that the trial court should have stricken Brown’s testimony in its entirety on the ground that she was guilty of false swearing. It is true that under OCGA § 24-9-85 (b), “[i]f a witness shall willfully and knowingly swear falsely, [her] testimony shall be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence.” But this statutory subsection applies only in the limited circumstance where the “witness admits [she] swore falsely or when the evidence manifestly establishes purposeful falsification.” Floyd v. State, 297 Ga. App. 736, 738 (1) (678 SE2d 181) (2009). Absent that limited circumstance, the issue is merely one of witness credibility for the trier of fact to determine. Id. See OCGA § 24-9-85 (a). And, significantly, the fact that a witness’s testimony may contain inconsistencies does not, standing alone, rise to the level of false swearing necessary to justify striking the testimony. Hardy v. State, 293 Ga. App. 265, 268 (2) (666 SE2d 730) (2008).

Decided October 28, 2010

Reconsideration denied November 23, 2010

Leon Brooker, pro se.

Zachary & Segraves, Stephen M. Gibbs, for appellee.

We have reviewed Brown’s testimony at the hearing, and the record is completely devoid of any evidence that she acted with a manifest purpose to testify falsely. The trial court thus did not err in declining to strike Brown’s testimony in its entirety. See Floyd, 297 Ga. App. at 738 (1). Any inconsistencies in Brown’s testimony were simply an issue of credibility for the trial court, as the trier of fact, to resolve. See id.; Hardy, 293 Ga. App. at 268 (2).

Judgment affirmed.

Barnes, B J., and Senior Appellate Judge G. Alan Blackburn concur.


author: Adams, Judge.

text:
    A10A0806.
    LANKFORD v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (703 SE2d 436)
   Adams, Judge.

Bobby Lee Lankford appeals the trial court’s grant of summary judgment to State Farm Mutual Automobile Insurance Company on his claim for uninsured motorist (UM) coverage. For the reasons set forth below, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997). So viewed, the evidence shows that on September 15, 2006, Lankford, while driving his employer’s truck, was involved in a collision with Charles Kaucky. Kaucky had an automobile insurance policy with State Farm, which provided liability coverage up to a $50,000-per-person limit. Lankford also had three separate State Farm policies, which provided potential UM coverage in excess of Kaucky’s policy. Three days after the collision, on September 18, a State Farm claims representative wrote Lankford a letter referencing Kaucky’s policy and discussing Lankford’s “recent accident.” Approximately one month later, on or around October 20, 2006, Lankford’s employer provided written notice that it intended to seek subrogation recovery rights in connection with the accident. The employer’s letter also referenced Kaucky’s policy and informed State Farm that Lankford’s treatment for his injuries was ongoing and that the employer would be seeking “repayment of all medical and indemnity expenses that have been paid by his worker’s compensation claim. ...” Subsequently, on February 2, 2007, State Farm issued a check in the amount of $1,616.88 to cover repairs to Lankford’s employer’s vehicle. That check also referenced Kaucky as the “insured.”

Five months later, in July 2007, Lankford underwent lumbar fusion surgery in connection with the injuries he received in this accident. That same month, his attorney requested and received disclosure of Kaucky’s policy limits. In September 2007, Lankford first discussed his injuries and his workers’ compensation claim with his State Farm agent, Jim Coker. He asserts that Coker never advised him that he needed to provide written notice in order to assert a claim for UM recovery under his own State Farm policies.

On September 5, 2008, almost two years after the accident, Lankford first provided written notice that he had been involved in an accident and first raised the issue of UM coverage under his own policies when his attorney enclosed his complaint for damages in a letter to State Farm. The suit sought recovery for personal injury, lost wages and general damages arising out of the accident. State Farm was formally served with the complaint on September 8, 2008, and six months later, the insurer moved for summary judgment, asserting that it had not received timely written notice in accordance with Lankford’s policies, which required that Lankford “must give us or one of our agents written notice of the accident or loss as soon as reasonably possible.” The trial court granted summary judgment to State Farm, holding that Lankford had failed to give the requisite notice and that Lankford had failed to present any facts to justify this delay.

On appeal, Lankford asserts that the trial court erred on a number of grounds in granting summary judgment to State Farm. Each of his enumerations addresses the basic issue of whether his failure to provide formal written notice until almost two years after the accident should result in the forfeiture of his UM coverage.

“An insurance policy is simply a contract, the provisions of which should be construed as any other type of contract. The construction of an unambiguous contract is a question of law for the court.” (Citation and punctuation omitted.) Federated Mut. Ins. Co. v. Ownbey Enterprises, 278 Ga. App. 1, 5 (627 SE2d 917) (2006). Lankford’s policies required that he provide written notice of the accident or loss to State Farm or one of its agents “as soon as reasonably possible.” Moreover, the policies provide that as a condition of insurance coverage “[t]here is no right of action against [State Farm] . . . until all the terms of this policy have been met.”

It is well established that a notice provision 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 omitted.) Id. at 3 (notice became condition precedent under general provision that compliance with policy terms was required for coverage). Thus, failure to provide the requisite notice could result in a forfeiture under the policy.

As a threshold issue, we conclude that the policy in this case, which required notice as a condition precedent to recovery of insurance benefits, required Lankford to provide notice “as soon as reasonably possible” after the accident, and not “as soon as reasonably possible” after the point that Kaucky’s coverage was exhausted or that Lankford became concerned that his losses might exceed Kaucky’s policy limits. Although this requirement is not explicit, it is implied in the policy language which requires that the notice detail the “hour, date, place and facts of the accident or loss,” the names of the parties involved and any potential witnesses: See Manzi v. Cotton States Mut. Ins. Co., 243 Ga. App. 277, 280 (531 SE2d 164) (2000). To hold otherwise

would allow an insured to delay notifying the insurer for months or even years, so long as the insured thought that other insurance existed to cover the loss. Such an interpretation is contrary to the obvious intent of the policy, which is to require notice [within a reasonable period] after the occurrence of a covered event.

Id. at 281. See also Cotton States Mut. Ins. Co. v. Hipps, 224 Ga. App. 756, 757 (481 SE2d 876) (1997) (a misunderstanding on the part of an insured cannot alter the plain language of an insurance contract). Compare Gregory v. Allstate Ins. Co., 134 Ga. App. 461, 464 (214 SE2d 696) (1975) (where notice was not made a condition precedent to recovery, policy required notice “as soon as practicable” after discovery of other driver’s uninsured status if insured reasonably diligent in his efforts to determine that status).

It is undisputed that Lankford did not provide written notice to State Farm until September 5, 2008, almost two years after the accident. While the language “as soon as reasonably possible” “affords some leeway in providing notice of a claim or suit or occurrence to an insurer, a lengthy, unjustifiable delay may be found as a matter of law to have been so unreasonable as to foreclose coverage.” (Citation omitted.) Park Pride of Atlanta v. City of Atlanta, 246 Ga. App. 689, 695 (541 SE2d 687) (2000). And as Georgia courts have held in like circumstances, the failure to notify an insurer of an accident for almost two years amounts to an unreasonable delay as a matter of law. Royer v. Murphy, 277 Ga. App. 150, 151 (625 SE2d 544) (2006) (delay of two years in giving notice to uninsured motorist carrier unreasonable). See also Protective Ins. Co. v. Johnson, 256 Ga. 713, 714 (1) (352 SE2d 760) (1987) (delay of 17 months unreasonable).

Lankford asserts, however, that he should not be barred from coverage because State Farm had actual notice of the accident, pointing to the fact that someone, presumably Kaucky or someone on his behalf, notified State Farm of the accident shortly after it occurred, as evidenced by the insurer’s letter to Lankford three days later referring to “your recent accident.” But notification by an unrelated third party such as Kaucky did not relieve Lankford of his separate, contractual obligation to provide notice to State Farm under his own policies. It was only a matter of coincidence that Kaucky and Lankford shared the same insurer. The policies required Lankford to notify State Farm that he, another of the company’s insureds, had been involved in an accident and/or suffered a loss. All of the correspondence submitted on behalf of Lankford prior to the suit referenced Kaucky’s policy, and no mention was made of Lankford’s own policies. State Farm would have been entitled to conclude from this correspondence that Lankford was a stranger seeking benefits under the policy of its insured, Kaucky. We know of no authority requiring an insurer to cross-reference the names of all parties involved in an accident to determine whether they, too, have insurance through the insurer; instead the insurer is entitled to rely upon its contractual notice provisions.

Nevertheless, Lankford contends he personally provided State Farm notice in September 2007, when he spoke with Coker, his State Farm agent, about his injuries and “the fact that my claim was being handled through my employer[’]s workers’ compensation plan.” But even if the conversation with Coker could satisfy the notice requirement, it did not take place until approximately one year after the accident, and Lankford offers no justification for this delay. Any claim that he was unaware that he might need to utilize his UM coverage until some point after the accident occurred provides no excuse. In Allstate Ins. Co. v. Walker, 254 Ga. App. 315 (562 SE2d 267) (2002), the insurance policy required notice of any loss “as soon as possible,” but the Walkers waited almost one year to inform Allstate of the theft of their van because they did not know they could recover for such theft under their policy. Id. at 315. This Court held that the almost one-year delay was unreasonable as a matter of law, and that the Walkers’ ignorance of their right to submit a claim under the policy did not provide an excuse for the delay. Id. at 316 (1) See also Snow v. Atlanta Intl. Ins. Co., 182 Ga. App. 1 (354 SE2d 644) (1987) (ten-month delay in notification unexcused and unreasonable as matter of law where insured claimed he did not know which company carried insurance on tractor-trailer). Compare Southern Mut. Ins. Co. v. Mason, 213 Ga. App. 584, 587 (1) (445 SE2d 569) (1994) (giving oral notice in lieu of written notice as required by policy created jury question of issue of reasonableness where no evidence that oral notice was unreasonably delayed).

Accordingly, we agree with the trial court that State Farm was entitled to summary judgment on Lankford’s claims.

Judgment affirmed.

Smith, P J., and Mikell, J., concur.

Decided November 23, 2010

David W. Hibbert, Sara Simmons-Brown, for appellant.

Harper, Waldon & Craig, Jonathan M. Adelman, Ashley Giblin, Hill, Kertscher & Wharton, Blakely H. Frye, for appellee.

       Compare Resource Life Ins. Co. v. Buckner, 304 Ga. App. 719, 727 (1) (698 SE2d 19) (2010) (where policy contained only notice requirement with no conditional language, notice was not condition precedent to coverage); Gilbert v. Southern Trust Ins. Co., 252 Ga. App. 109 (555 SE2d 69) (2001) (where undisputed that insured was notified of fact of loss, failure to comply with appraisal clause of policy does not result in a forfeiture); Cotton States Mut. Ins. Co. v. Walker, 232 Ga. App. 41 (1) (500 SE2d 587) (1998) (where undisputed that insurer was notified of fact of loss, but insured failed to supply required sworn proof of loss within 60 days, general provision that compliance with policy terms necessary for recovery did not support forfeiture of coverage).

       Lankford apparently did not seek to determine Kaucky’s policy limits until ten months after the accident.

       The policy in Johnson required notice “as soon as practicable” but apparently did not require that the notice be in writing. 256 Ga. at 713 (1). Thus, the Supreme Court held that although Johnson did not formally notify his own insurer until 18 months after the accident, a jury issue arose as to whether he had provided sufficient notice when he spoke with his insurance agent shortly after his injury to explain that he had missed several premium payments because he had been in the hospital. Id. at 714 (2). See also Kitt v. Shield Ins. Co., 240 Ga. 619 (241 SE2d 824) (1978) (holding that, where policy did not require written notice, insurer received actual notice from insured’s conversation with agent shortly after accident stating his daughter had been killed by uninsured driver).

       Nor do we find persuasive Lankford’s contention that State Farm somehow waived its right to insist upon separate notice by continuing to service Kaucky’s claim after Lankford’s employer notified the insurer that it would be seeking reimbursement under Kaucky’s policy.