author: MILLER, Presiding Judge.

text:
    A11A0727.
    THE STATE v. THAXTON.
    (715 SE2d 480)
   MILLER, Presiding Judge.

The State appeals from the grant of defendant Randall Thax-ton’s motion for discharge and acquittal for violation of his constitutional right to a speedy trial. See OCGA § 5-7-1 (a) (1) (authorizing the State to appeal, among other things, from the dismissal of an indictment). The State contends that the trial court erred in its analysis of the Barker factors by: (i) failing to weigh heavily against Thaxton his failure to assert his right to a speedy trial before indictment, and (ii) failing to treat as relatively benign the post-arrest, pre-indictment delay at issue given the relative significance of the parties’ activities in this case. For the reasons that follow, we reverse the trial court’s order and remand this case with direction.

The record shows that Randall Thaxton was arrested on or about October 30, 2008, for seven counts of dogfighting (OCGA § 16-12-37), cruelty to animals (OCGA § 16-12-4), and possession of more than one ounce of marijuana (OCGA § 16-13-30). Thaxton was appointed counsel on November 4, 2008, and has been represented by counsel at all times since that date.

On December 3, 2008, Thaxton entered into a consent bond and was released from jail. The conditions of Thaxton’s release on bond included GPS monitoring (except for verified daytime employment) and avoidance of all contact with animals.

On January 11, 2010, Thaxton was indicted on one felony count of possession of more than one ounce of marijuana (OCGA § 16-13-30 (j) (1)), and three counts of misdemeanor cruelty to animals (OCGA § 16-12-4 (b)). A series of continuances to facilitate discovery were thereafter granted at Thaxton’s request. On September 27, 2010, the trial court granted the last of Thaxton’s requests for continuance and contemporaneously granted appointed counsel’s motion to withdraw as counsel, and Thaxton’s current counsel was retained to represent him.

Thaxton filed his motion for discharge and acquittal on February 15, 2010, pointing to pre-indictment delay following his arrest. The trial court granted Thaxton’s motion, finding that the pre-indictment delay was excessive and that Thaxton suffered prejudice to his defense. The State filed a motion for reconsideration of the decision. Following a hearing, the trial court denied the State’s motion, upholding its dismissal of the criminal action based upon a violation of the constitutional right to a speedy trial. The instant appeal ensued.

Two types of pretrial delay have been recognized as possible violations of an accused’s constitutional rights to a speedy trial. One type is delay that precedes the arrest or the indictment, which implicates due process guarantees under the Fifth and Fourteenth Amendments. See Jones v. State, 284 Ga. 320 (1) (667 SE2d 49) (2008). The second type of pretrial delay is that which occurs after an arrest or indictment, to which Sixth Amendment standards apply. See id. at 322 (2); Haisman v. State, 242 Ga. 896, 898 (2) (252 SE2d 397) (1979). Significantly, at the point of arrest, one becomes “an accused” and Sixth Amendment standards apply. See Haisman, supra, 242 Ga. at 898 (2) (citing Dillingham v. United States, 423 U. S. 64, 65 (96 SC 303, 46 LE2d 205) (1975) and United States v. Marion, 404 U. S. 307, 320-325 (III) (92 SC 455, 30 LE2d 468) (1971)).

In this case, Thaxton’s motion for discharge and acquittal complained of the 15-month delay that occurred after the date of his arrest on or about October 20, 2008. Since the delay occurred after his arrest, Sixth Amendment standards must be applied in resolving the instant speedy trial claim. See Haisman, supra, 242 Ga. at 898 (2).

The template for deciding all constitutional speedy trial claims under the Sixth Amendment and the Georgia Constitution is laid out in the 1972 case of Barker v. Wingo, [supra,] and the 1992 decision in Doggett v. United States[, 505 U. S. 647 (112 SC 2686, 120 LE2d 520) (1992),] which is to date the Supreme Court’s last detailed discussion of the topic. The analysis has two stages. First, the court must determine whether the interval from the accused’s arrest, indictment, or other formal accusation to the trial is sufficiently long to be considered presumptively prejudicial. If not, the speedy trial claim fails at the threshold. If, however, the delay has passed the point of presumptive prejudice, the court must proceed to the second step of the Barker-Doggett analysis, which requires the application of a delicate, context-sensitive, four-factor balancing test to determine whether the accused has been deprived of the right to a speedy trial.

(Punctuation and footnotes omitted.) Ruffin v. State, 284 Ga. 52, 55 (2) (663 SE2d 189) (2008). The Barker balancing factors are as follows: (a) whether pretrial delay was excessively long; (b) whether the defendant or the State is primarily responsible for the delay; (c) whether the defendant timely asserted his right to a speedy trial; and (d) whether the defendant was prejudiced by the delay. State v. Porter, 288 Ga. 524, 525-526 (2) (a) (705 SE2d 636) (2011). No one factor is necessary or sufficient to sustain a finding that the right to a speedy trial has been denied; rather, “the factors should be considered together in a balancing test of the conduct of the prosecution and the defendant.” (Citation omitted.) State v. Gleaton, 288 Ga. 373, 374 (703 SE2d 642) (2010). On appeal, we review the trial court’s weighing of each Barker factor and its balancing of all four factors only for abuse of discretion. Porter, supra, 288 Ga. at 525 (2) (a).

However, where the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed the trial court’s ultimate ruling is diminished. In addition, the trial court’s order must provide sufficient findings of fact and conclusions of law to permit this Court to determine if the trial court properly exercised its discretion under the Barker analysis.

(Citations and punctuation omitted.) Id. at 526 (a). The trial court made several errors in its application of this framework to Thaxton’s speedy trial claim, which requires reversal and remand of the case for proper consideration. See id.

1. The Threshold Inquiry. Prior to application of the Barker balancing test, we first consider the length of the delay.

The length of the delay factors into the speedy trial analysis in two respects: First, a court must determine whether the delay has crossed the threshold dividing ordinary from “presumptively prejudicial” delay, since, by definition, the accused cannot complain that the government has denied him a “speedy” trial if it has, in fact, prosecuted his case with customary promptness. If the delay passes this threshold test of “presumptive prejudice,” then the Barker inquiry is triggered. The delay is then considered a second time by factoring it into the prejudice prong of the Barker analysis, with the presumption that pretrial delay has prejudiced the accused intensifying over time. However, the presumptive prejudice arising from delay cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria. Instead, it is part of the mix of relevant facts, and its importance increases with the length of delay.

(Citations and punctuation omitted.) Brown v. State, 287 Ga. 892, 894-895 (1) (a) (700 SE2d 407) (2010). See also Higgins v. State, 308 Ga. App. 257, 258-259 (1) (707 SE2d 523) (2011).

“The constitutional right to a speedy trial attaches on the date of the arrest or when formal charges are initiated, whichever first occurs.” (Citation and punctuation omitted.) Higgins, supra, 308 Ga. App. at 259 (1). “Where a trial has not occurred, the delay should be calculated from the date of arrest or other formal accusation to the date on which a defendant’s speedy trial motion was granted or denied[.]” Porter, supra, 288 Ga. at 526 (2) (b). Under this calculation, the delay extended from Thaxton’s arrest on or about October 30, 2008, until the grant of Thaxton’s speedy trial motion on October 6, 2010. This period reflects a delay of approximately 23 and a half months. Generally, a delay exceeding one year is deemed as presumptively prejudicial. See Porter, supra, 288 Ga. at 526-527 (2) (b). Since the delay in this case was presumptively prejudicial, the application of the Barker balancing test was in fact triggered. See id.

2. Barker Balancing Test.

(a) Length of the Delay. Under the first factor of the Barker test, we again consider the full length of the delay.

It is important that trial courts not limit their consideration of the lengthiness of the pretrial delay to the threshold question of presumptive prejudice and remember to count it again as one of four criteria to be weighed in the balancing process at the second stage of the Barker-Doggett analysis. As the [United States] Supreme Court has explained, this latter inquiry is significant to the speedy trial analysis because the presumption that pretrial delay has prejudiced the accused intensifies over time.

(Citations and punctuation omitted.) Ruffin, supra, 284 Ga. at 56-57 (2) (b) (i). “A delay is considered uncommonly long under the test to the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” (Citation omitted.) Higgins, supra, 308 Ga. App. at 260 (2) (a).

Here, the trial court found that the pre-indictment delay “was excessive and inordinately so.” The trial court further explained that the pre-indictment delay was “unusual” and exceeded the time typically necessary for the State to proceed. Thus, presumably the trial court weighed this factor against the State. To the extent that the majority of the delay occasioned in this case was attributed to the pre-indictment delay, such delay was significant in the analysis of this factor. As previously stated, prejudice is presumed with a delay of approximately one year. This factor could properly be weighed against the State. See Ruffin, supra, 284 Ga. at 57-59; Higgins, supra, 308 Ga. App. at 260 (2) (a).

(b) Reason for Delay. The second factor in the Barker-Doggett analysis required the trial court to examine both the reason for the delay and whether the delay was attributable to the defendant or to the State. See Porter, supra, 288 Ga. at 527 (2) (c) (2). Here, the State explained that the pre-indictment delay at issue was attributable to the investigatory efforts required in preparing for a potential prosecution on dogfighting charges under the amended statute. The prosecutor assigned to the case stated that she had no experience in prosecuting dogfighting cases and thus, she had to spend time to learn about the intricacies related to the crime. Ultimately, the State decided not to pursue the dogfighting charge, and Thaxton was instead indicted for one count of felony drug possession and three counts of misdemeanor cruelty to animals.

The trial court rejected the State’s explanation as “insufficient” and noted that even considering the delay associated with the new dogfighting statute, the State nevertheless had not adequately explained its failure to expeditiously pursue the other ordinary drug and animal cruelty charges. Notwithstanding its opinion regarding the State’s failure to proceed more expeditiously, the trial court further found that there was no evidence of intentional delay by the State for the purpose of gaining an advantage over Thaxton. It thus weighed the reason for the delay as a “relatively benign” factor against the State. The trial court’s findings and conclusions in this regard were correct.

Investigative delay is acceptable, whereas delay undertaken by the Government solely to gain tactical advantage over the accused is not acceptable. “[PJrosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect’s guilt beyond a reasonable doubt.” United States v. Lovasco, 431 U. S. 783, 791 (II) (97 SC 2044, 52 LE2d 752) (1977).

(Citation and punctuation omitted.) Jones, supra 284 Ga. at 321 (1). A determination as to whether a case is being prosecuted with the customary promptness depends upon the peculiar circumstances of the case. See Jackson v. State, 279 Ga. 449, 452 (3) (614 SE2d 781) (2005). For example, “[t]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” (Citation and punctuation omitted.) Williams v. State, 282 Ga. 561, 563 (4) (651 SE2d 674) (2007). As the trial court found here, notwithstanding the State’s investigatory efforts regarding the dogfighting crime, the State had not adequately explained its failure to expeditiously pursue the common drug and animal cruelty charges. Since the State failed to provide a clear reason for the delay pertaining to those charged offenses, we treat the delay as caused by the State’s negligence. See Boseman v. State, 263 Ga. 730, 733 (1) (b) (438 SE2d 626) (1994); Frazier v. State, 277 Ga. App. 881, 882 (b) (627 SE2d 894) (2006). On the other hand, since there was no evidence that the State deliberately delayed the trial in an effort to gain a tactical advantage, this factor was relatively benign. See Frazier, supra, 277 Ga. App. at 882 (b).

(c) Assertion of the Right to Speedy Trial. The record reflects that Thaxton did not assert his right to a speedy trial until he filed his motion for discharge and acquittal on February 15, 2010, which was almost 16 months after his arrest. Although Thaxton complained of the pre-indictment delay, the trial court’s order noted that Thaxton had not asserted his right to a speedy trial throughout that period of time. The trial court recognized that the failure to assert the speedy trial right weighs heavily against the defendant. In applying the Barker test, however, the trial court declined to weigh this factor heavily against Thaxton, opining that “there’s not a whole lot you can do until there’s an indictment”; “it’s tactically advantageous to the defense to sit on it a little while . . .”; and “I don’t want to force every case to be a demand for speedy trial case.” The trial court’s reasoning was flawed.

Thaxton had a Sixth Amendment right to a speedy trial, which attached at the time of his arrest and could have been asserted thereafter. See Haisman, supra, 242 Ga. at 898 (2); State v. Hight, 156 Ga. App. 246, 247 (274 SE2d 638) (1980).

[A] defendant may assert his constitutional right to a speedy trial at any time after he is arrested; he need not wait until indictment. However, once his constitutional right accrues, the defendant has the responsibility to assert it, and delay in doing so normally will be weighed against him.

(Citations and punctuation omitted.) State v. Pickett, 288 Ga. 674, 676 (2) (c) (3) (706 SE2d 561) (2011). Supreme Court of Georgia precedent, however, recognizes that “a trial court has the discretion to mitigate the weight given this factor when a defendant fails to assert his right during the period between arrest and indictment if he was out on bond and without counsel.” Id. (citing Gleaton, supra, 288 Ga. at 373). Here, although Thaxton was on bond, he became represented by counsel within a week of his arrest and continued to be represented by counsel thereafter. As such, there was no basis for mitigating Thaxton’s delay in asserting his right to a speedy trial on this recognized basis, nor on the bases stated by the trial court. “Our cases hold that an extended delay in asserting the right to a speedy trial should normally be weighed heavily against the defendant.” (Citations omitted.) Porter, supra, 288 Ga. at 529 (2) (c) (3). See also Haisman, supra, 242 Ga. at 898 (2). The trial court’s failure to heavily weigh this factor against Thaxton was erroneous.

(d) Prejudice to the Defendant. The fourth Barker factor involves three interests that the speedy trial right was designed to protect: “(i) preventing] oppressive pretrial incarceration; (ii) [minimizing] anxiety and concern of the accused; and (iii) [limiting] the possibility that the defense will be impaired.” (Citation and punctuation omitted.) Ruffin, supra, 284 Ga. at 64 (2) (b) (iv).

Although the trial court found prejudice to the defendant, it made no finding as to whether Thaxton suffered excessive pretrial incarceration. This is perhaps because Thaxton was incarcerated for approximately one month prior to his release from confinement on bond. While Thaxton was under restrictive bond conditions, the trial court properly noted that Thaxton had agreed to those conditions by entering into the consent bond order. The trial court otherwise found that there was no evidence that Thaxton had suffered anxiety or concern due to the delay. The trial court further found that there was no evidence of any impairment of his defense attendant to the delay. See Doggett, supra, 505 U. S. at 656 (III) (A). Given the foregoing findings, the trial court erred in granting Thaxton’s motion for discharge and acquittal based upon its unexplained conclusion that the prejudice was “substantial enough.”

(e) Balancing the Four Factors. While the trial court made certain findings of fact related to the Barker factors, it failed to conduct a balancing test of the four factors as required by Barker. Rather, upon reconsideration of its order granting discharge and acquittal, the trial court stated that “really what it boils down to is, the length of the delay versus the reason for the delay.” The trial court’s analysis was clearly erroneous.

Decided July 14, 2011

Reconsideration denied July 28, 2011.

Garry T. Moss, District Attorney, Cliff Head, Patricia G. Hull, Assistant District Attorneys, for appellant.

J. Alfred Johnson, for appellee.

As the United States Supreme Court explained in Barkerl,] [w]e regard none of the four factors as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. The Barker Court emphasized that its balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. Our Court has often repeated this admonition to consider and weigh all four factors under the circumstances of each case[.]

(Citations and punctuation omitted.) Porter, supra, 288 Ga. at 532-533 (2) (d). In the absence of findings of fact and conclusions of law consistent with the Barker balancing test, “there is no exercise of discretion for this Court to review, and the trial court’s order must be vacated and the case remanded for the entry of a proper order pursuant to Barker.” (Citations and punctuation omitted.) Id. at 533 (2) (e). Accordingly, we reverse the judgment of the trial court and remand the case for proceedings consistent with this opinion.

Judgment reversed and case remanded with direction.

Ellington, C. J., and Doyle, J., concur.

        Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972).

       The trial court nevertheless concluded that “[t]he issues with the case lie primarily in the delay prior to indictment.” In turn, the State’s appeal only challenges the trial court’s rulings as to the pre-indictment delay. Based upon this calculation, the length of the pre-indictment delay began with the date of Thaxton’s arrest on or about October 30, 2008, and ended when he was formally indicted on January 11, 2010, which was 14 and a half months. Although the State’s appeal only challenges the findings as to the pre-indictment delay of 14 and a half months, the same result is obtained in this case. While the State seeks to rely upon the shorter time frame to challenge the speedy trial matter, the Barker analysis requires us to consider the entire relevant interval. See Porter, supra, 288 Ga. at 526 (2) (b); Higgins, supra, 308 Ga. App. at 259 (1) (“[F]or purposes of our analysis, the computation of the length of delay ends when the trial court rules on the motion to dismiss.”).

       The statute proscribing dogfighting, OCGA § 16-12-37, was amended in May 2008. See Ga. L. 2008, p. 114, § 1-1/HB 301. Under the amendment, the provisions defining the offense were substantially revised.

       Beyond the pre-indictment delay was a further delay of approximately nine months. This delay was purportedly the result of discovery matters. Thaxton claimed that although he had filed discovery requests on February 10, 2010, he did not receive any discovery from the State until four months later on June 17, 2010. Thereafter, Thaxton and the State agreed to a consent order of continuance from the August 2010 trial calendar based, in part, on the need for additional discovery. The trial court determined that “any delay subsequent to the indictment did not inure to the benefit of [Thaxton], nor to the detriment of the State.” The State does not challenge the trial court’s determination as to any post-indictment delay. We nevertheless note that the discovery delay in this regard appears to be attributable to the State. There has been no showing, however, that the delay was intentionally caused to benefit the State.

       “[A] defendant may assert his constitutional speedy trial right through a motion to dismiss asserting a violation of that right.” (Citations and punctuation omitted.) Porter, supra, 288 Ga. at 528 (2) (c) (3).


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A11A0542.
    A11A0543.
    A11A0544.
    A11A0545.
    JNJ FOUNDATION SPECIALISTS, INC. v. D. R. HORTON, INC. COLUMBIA NATIONAL INSURANCE COMPANY v. HALL et al. BRENT SCARBROUGH & COMPANY, INC. et al. v. D. R. HORTON, INC. et al. D. R. HORTON, INC. v. BRENT SCARBROUGH & COMPANY, INC. et al.
    (717 SE2d 219)
   PHIPPS, Presiding Judge.

These appeals are from the trial court’s rulings on summary judgment in an action for personal injuries arising out of an automobile collision. D. R. Horton, Inc. was a subdivision developer. In December 2006, Gary Hall was driving on Pleasant Hill Road near the front of the subdivision when he saw construction barrels in the middle of his travel lane. Hall brought his vehicle to a stop and waited to change lanes. As he waited, his vehicle was rear-ended by another vehicle. After his vehicle was struck, he noticed a cement truck in the roadway, beyond the subdivision entrance, apparently being used in the construction of a sidewalk.

Hall filed an action against the driver of the second vehicle, against D. R. Horton, and against John Doe, alleging inter alia that D. R. Horton was negligent in entrusting operation of the construction site to John Doe, in failing to properly train and supervise John Doe when D. R. Horton knew or should have known that the failure to adequately mark the lane closure created a hazard, in failing to properly place warning signs, and in failing to take other steps to reduce the hazard and danger to others on the roadway. D. R. Horton answered the complaint and filed a third-party complaint against several contractors and their insurance carriers, including JNJ Foundation Specialists, Inc. and its insurance carrier Columbia National Insurance Company, and Brent Scarbrough & Company, Inc. and its insurance carrier Westfield Insurance Company. D. R. Horton moved for summary judgment as to each of these third-party defendants, and they filed cross-motions for summary judgment, These appeals are from the court’s order granting D. R. Horton’s motion for summary judgment as to JNJ and denying the remaining motions for summary judgment. We affirm the judgment in Case Nos. A11A0542, A11A0543 and A11A0544. We reverse the judgment in Case No. A11A0545.

Summary judgment is proper only when no issue of material fact exists and the moving party is entitled to judgment as a matter of law. When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence.

Case No. A11A0542

1. JNJ contracted with D. R. Horton to pour entry sidewalks for the subdivision. In its third-party complaint, D. R. Horton alleged that JNJ was liable for refusing to provide a defense and indemnification for JNJ’s negligent conduct, when the parties’ construction contract required JNJ to do so. The court granted D. R. Horton’s motion for summary judgment and denied JNJ’s motion for summary judgment, finding that JNJ was liable for failing to provide a defense and indemnification. JNJ asserts that these findings were made in error.

JNJ contends that the trial court erred in holding that it was required to defend and indemnify D. R. Horton because: (a) there was no evidence that JNJ placed the construction barrels in the roadway; (b) there was no evidence that the barrel placement was the direct and proximate cause of Hall’s injury; (c) the complaint did not allege facts that came within the scope of JNJ’s work; (d) JNJ offered a defense and indemnification, which D. R. Horton rejected; and (e) JNJ had no duty to indemnify D. R. Horton because the latter was not legally obligated to pay Hall. The arguments are without merit.

The construction contract between D. R. Horton and JNJ required JNJ to carry commercial general liability insurance, and provided that JNJ had a duty to defend and indemnify D. R. Horton for any claims “in any way occurring, incident to, arising out of, or in connection with . . . the work performed or to be performed by contractor or contractor’s personnel, agents, suppliers, or permitted subcontractors.” Under Georgia law pertaining to indemnity provisions, “ ‘arising out of’ [means] ‘had its origins in,’ ‘grew out of,’ or ‘flowed from.’ ” Importantly, “the term ‘arising out of’ does not mean proximate cause in the strict legal sense, nor [does it] require a finding that the injury was directly and proximately caused by the insured’s actions. Almost any causal connection or relationship will do.”

(a) There was evidence that JNJ placed the construction barrels in the roadway. Specifically, there was evidence that, on the date of the collision, JNJ poured a sidewalk at the subdivision, along Pleasant Hill Road; that the sidewalk was being poured at the time the traffic lane on Pleasant Hill Road was blocked; that JNJ’s supplier delivered concrete to the entrance of the subdivision so that JNJ could construct sidewalks; that a JNJ employee who was working with the sidewalk contractors told a Brent Scarbrough employee that she needed him to close a lane for concrete that was on the way; that the Brent Scarbrough employee replied that he could not close a lane without a permit and that it would take days to obtain one, to which the JNJ employee replied that she had concrete “on the way”; that the JNJ employee asked if she could use Brent Scarbrough’s barrels to close the lane, but was told she could not; and that when the collision occurred, construction barrels were in the roadway, as was a cement truck that appeared to be pouring sidewalks.

In his complaint, Hall alleged that D. R. Horton and an unknown defendant created a hazard in closing the lane without proper signage or warnings. Hall’s claim arose out of or was connected in some way to JNJ’s work. Thus, the trial court properly denied JNJ’s motion for summary judgment and granted D. R. Horton’s motion for summary judgment on the indemnification issue.

As for the duty to defend, an insurer can refuse to defend only when the allegations “unambiguously exclude coverage under the policy.”

If the facts as alleged in the complaint even arguably bring the occurrence within the policy’s coverage, the insurer has a duty to defend the action. Indeed, to excuse the duty to defend the petition must unambiguously exclude coverage under the policy, and thus, the duty to defend exists if the claim potentially comes within the policy. Where the claim is one of potential coverage, doubt as to liability and [the] insurer’s duty to defend should be resolved in favor of the insured.

Given the nature of the allegations in Hall’s complaint, the trial court properly denied JNJ’s motion for summary judgment and granted D. R. Horton’s motion for summary judgment regarding the duty to defend.

(b) JNJ contends there was no duty to defend or indemnify because there was no evidence of direct and proximate causation; it posits that the collision would have occurred notwithstanding the alleged acts of negligence, given the second driver’s admission that she had been following Hall’s vehicle too closely.

However, D. R. Horton’s claim against JNJ was based on breach of contract, not negligence. And as noted in Division 1, the duty to defend and indemnify provision of the contract applied to claims arising out of or connected with JNJ’s work, and the term “arising out of” does not mean proximate cause or require a finding that the injury was directly and proximately caused by the insured’s actions. There was no error.

(c) JNJ contends that the allegations set out in Hall’s complaint did not come within the scope of JNJ’s work as defined by the construction contract. Specifically, JNJ contends that the defense and indemnification provision relied upon by D. R. Horton covered work performed or to be performed by the contractor, and that another contract provision stated that the work to be performed was the labor necessary to complete the construction-related activities “generally described in Exhibit A,” but that Exhibit A was blank. JNJ argues that its work was limited to pouring entry sidewalks, that it had no obligation or duty regarding lane closures, and that the defense and indemnity provision therefore did not apply.

The defense and indemnity provision of the contractor agreement required only that a claim arose from or was connected with the work of JNJ or, among others, its suppliers. The allegations that the collision arose from or was connected to the construction activities that the facts show JNJ was performing were sufficient to invoke the provision.

(d) JNJ contends that it was entitled to summary judgment because it (through its insurer, Columbia National) tendered a defense and indemnification to D. R. Horton, but the latter rejected it.

The purported offer to defend was conditioned upon Columbia National providing “a defense in this case solely for any acts committed by JNJ Foundations, Inc.” But the parties’ construction contract provided, in pertinent part, that JNJ would defend and indemnify D. R. Horton for losses in any way occurring, incident to, arising from, or in connection with the work performed by JNJ or its agents, suppliers, or permitted subcontractors. When the terms of a written contract are clear and unambiguous the court is to look to the contract alone to find the parties’ intent. In this case, it is clear that the parties intended that a defense be provided not “solely for acts committed by” JNJ. D. R. Horton was not required to accept less than what the contract required, and the trial court did not err in so finding.

(e) JNJ contends that D. R. Horton’s indemnity claim fails because the latter voluntarily settled the underlying action with Hall. However, “under OCGA § 51-12-32, the right of indemnity shall not be lost or prejudiced by compromise and settlement.” JNJ’s reliance on Emergency Professionals of Atlanta v. Watson is misplaced, as that case is factually distinguishable. The court did not err in denying JNJ’s motion for summary judgment and granting D. R. Horton’s motion for summary judgment on this issue.

Case No. A11A0543

2. Columbia National appeals from the court’s denial of its motion for summary judgment. Columbia National contends it had no duty to defend or indemnify D. R. Horton because D. R. Horton failed to comply with the notice and service provisions of its insurance policy with Columbia National, on which D. R. Horton was an additional insured. That policy pertinently provided the following duties of the insured in the event of an occurrence, offense, claim or suit:

a. You must see to it that we are notified as soon as practicable of an “occurrence” . . . which may result in a claim.
b. If a claim is made or “suit” is brought against any insured, you must:
(2) Notify us as soon as practicable. You must see to it that we receive written notice of the claim or “suit” as soon as practicable.
c. You and any other involved insured must:
(1) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the claim or “suit.”

It further provided, “No person . . . has a right under this Coverage Part. . . [t]o sue us on this Coverage Part unless all of its terms have been fully complied with.”

In April 2008, Hall’s attorney sent D. R. Horton’s in-house counsel two letters stating that Hall had been involved in an automobile collision located at “Pleasant Hill Rd. near Mary St.” on December 15, 2006. In the letters, Hall’s counsel sought the identity of the entity or entities performing construction work at the location indicated. The letters did not indicate that any claims were being made against D. R. Horton or its contractors, although a police report purportedly attached thereto referenced construction on Pleasant Hill Road, and noted that the lane closure was not properly marked. D. R. Horton’s in-house counsel did not recall receiving the letters or discussing the matter with Hall’s attorney.

D. R. Horton was served with Hall’s complaint in November 2008. It answered the complaint in December 2008 and filed a third-party complaint against the contractors and their insurance carriers in January 2009. D. R. Horton filed its first amended third-party complaint, naming as a defendant Columbia National, in February 2009. Hall’s complaint was attached to the first amended third-party complaint and referenced therein. Columbia National was served with the first amended third-party complaint in February 2009, which it answered in March 2009.

(a) Columbia National contends that it received no notice of Hall’s claim until February 2009, and that D. R. Horton’s ten-month delay (from April 2008 to February 2009) was unreasonable. Columbia National argues that because D. R. Horton failed to notify it of the occurrence “as soon as practicable,” it had no duty to defend or indemnify D. R. Horton.

The April 2008 letters did not indicate that there was an occurrence that may result in a claim against D. R. Horton. An insured is not required to foresee every possible claim, no matter how remote, that could have arisen from an accident. Rather, the insured is only required to act reasonably under the circumstances.

In general, the question of whether an insured gave notice of an event or occurrence “as soon as practicable,” as required by a policy of insurance, is a question for the factfinder. And an insured often may be able to present evidence of excuse or justification for the delay. Whether the excuse or justification was sufficient and whether the insured acted diligently in giving the notice are generally questions of fact, to be determined by the jury, according to the nature and circumstances of each individual case. But even so, we have also held that under all of the facts and circumstances of a particular case it may be found that an insured’s delay in giving notice of an accident to [its] insurer was unjustified and unreasonable as a matter of law.

D. R. Horton was not directly involved in the automobile collision, and there is no indication in the letters that its contractors were involved. It cannot be said, as a matter of law, that it was unreasonable for D. R. Horton to fail to foresee that it might be named in a lawsuit arising from the collision, and that its delay in giving notice of the collision was unreasonable. Moreover, we note that “[t]he words ‘as soon as practicable’ are relative, and must be measured by all the circumstances. Lapse of time alone, even approximately eleven months, does not of itself establish a noncompliance with the notice provision.” The court did not err in denying Columbia National’s summary judgment motion on this issue.

(b) Columbia National contends that D. R. Horton breached the contract by failing to immediately forward to it copies of the lawsuit.

D. R. Horton received Hall’s complaint in November 2008 and attached it to and referenced it in the first amended third-party complaint filed against Columbia National in February 2009. Columbia National’s named insured, JNJ, was not named in Hall’s complaint. Counsel for D. R. Horton began investigating the claim in December 2008, but was initially given information regarding a different accident on the same street. D. R. Horton later identified JNJ as one of the contractors whose work was implicated, but misnamed Columbia National (as “Columbia Insurance Agency, Inc.” rather than “Columbia National Insurance Company”) in the third-party complaint which it filed in January 2, 2009. The error was corrected, the first amended third-party complaint was filed, and Columbia National was served in February 2009.

Although Columbia National is not required to show prejudice resulting from an alleged failure to forward suit papers timely, the insurer’s failure to demonstrate prejudice may be considered. Columbia National has not demonstrated prejudice. Notably, there is no contention that Columbia National did not receive notice of the Hall suit when its insured, JNJ, received notice.

D. R. Horton is entitled to have a jury determine whether its conduct was reasonable under the circumstances. The court did not err in finding that genuine issues of material fact existed regarding whether D. R. Horton’s notice of the occurrence and service of the lawsuit was sufficient.

Case No. A11A0544

3. Westfield Insurance Company and Brent Scarbrough & Company, Inc. challenge the denial of their motion for summary judgment.

(a) Westfield Insurance contends that, because neither the allegations of the complaint nor the evidence implicates Brent Scarbrough as being responsible for Hall’s injuries, D. R. Horton does not qualify as an additional insured under the insurance policy issued by Westfield Insurance to Brent Scarbrough.

D. R. Horton’s construction contract with Brent Scarbrough required that the latter procure general liability insurance in which it named the former as an additional insured. The applicable Westfield Insurance policy endorsement pertinently provided that one added to the named insured’s policy as an “additional insured” is an insured only with respect to liability for [injury] caused, in whole or in part, by:

1. [Brent Scarbrough’s] acts or omissions; or
2. The acts or omissions of those acting on [Brent Scarbrough’s] behalf;
in the performance of [Brent Scarbrough’s] ongoing operations for the additional insured.

D. R. Horton’s liability to Hall fell within this definition because it was premised on injuries allegedly caused in part by Brent Scarbrough’s acts or omissions, or the acts or omissions of those acting on its behalf, in the performance of its ongoing operations for D. R. Horton. The allegations of Hall’s complaint as to D. R. Horton and John Doe explicitly referred to traffic control — lane closure and warnings. The construction contract contained a provision requiring Brent Scarbrough to furnish traffic control services, safety barriers, and temporary signage for all project personnel. The allegation of the complaint that John Doe was negligent in failing to properly train and supervise , individuals at the construction site and should have known that the failure to adequately mark the lane closure or take other steps to reduce the hazard implicated Brent Scarbrough. And the allegations that D. R. Horton was negligent in entrusting operation of the site to John Doe and in failing to properly train and supervise John Doe at the site indicate that D. R. Horton’s liability was derivative of John Doe’s liability. The trial court did not err in denying Westfield Insurance’s motion for summary judgment on the issue of D. R. Horton’s status as an additional insured.

(b) Westfield Insurance argues that D. R. Horton failed to give it timely notice of the occurrence as required by the policy. The Westfield Insurance policy provides, in pertinent part, that the insured must notify Westfield Insurance “as soon as practicable of an ‘occurrence’ or an offense which may result in a claim.” And if a claim is made or suit is brought against an insured, the insured must notify Westfield Insurance “as soon as practicable.” Further, the insured must “[immediately send [Westfield Insurance] copies of any demands, notices, summonses or legal papers received in connection with the claim or ‘suit.’ ” Moreover, no insured has the right “[t]o sue [Westfield Insurance] on this Coverage Part unless all of its terms have been fully complied with.”

Westfield Insurance contends that D. R. Horton had notice of Hall’s possible claim in April 2008, when Hall’s attorney sent the letters to D. R. Horton, but failed to directly notify Westfield Insurance of its claim for coverage prior to filing the first amended third-party complaint, and that such a delay cannot be justified. Therefore, Westfield Insurance argues, D. R. Horton was not entitled to coverage.

The record shows that Brent Scarbrough and/or Westfield Insurance received a letter from D. R. Horton in late December 2008, stating that Brent Scarbrough might be named in a lawsuit; West-field Insurance states that it responded to that notice in December 2008. As discussed in Division 2 (a), supra, the April 2008 letters did not inform D. R. Horton of an occurrence that may result in a claim against it; and the words “as soon as practicable” are relative, and must be measured by all the circumstances. D. R. Horton was not required to foresee every possible claim that might arise from the vehicle collision and give notice of it to an insurance carrier (here, a contractor’s insurance carrier). Instead, the law requires an insured to act only reasonably under the circumstances. In most cases, the reasonableness of a failure to give notice is a question for the finder of fact. “[I]t is the nature and circumstances of the accident or the incident and the immediate conclusions an ordinarily prudent and reasonable person would draw therefrom that determine whether an insured has reasonably justified his decision not to notify the insurer.” And, Westfield Insurance was sent notice of the lawsuit less than one month after it was served upon D. R. Horton. Under the circumstances, we cannot say as a matter of law that any delay was unjustified and unreasonable. The trial court properly denied Westfield Insurance’s summary judgment motion on the issue of timeliness.

(c) Brent Scarbrough contends that the trial court erred in denying its motion for summary judgment on D. R. Horton’s contractual indemnity claim because there was no evidence that Brent Scarbrough’s employees were responsible for the lane closure.

The contract between Brent Scarbrough and D. R. Horton provided, in pertinent part, that Brent Scarbrough would indemnify D. R. Horton for any claim

arising out of or resulting from the performance of [Brent Scarbrough’s] Work provided that . . . any such claim ... is attributable to bodily injury ... or to injury to . . . property, .. . to the extent caused or alleged to be caused in whole or in part by any negligent act or omission, or the breach of this Agreement by [Brent Scarbrough], or anyone directly or indirectly employed by [Brent Scarbrough] or anyone for whose acts [Brent Scarbrough] may be liable, regardless of whether it is caused in part by a party indemnified hereunder. . . . This indemnification shall not be limited in any way.

By its own terms, the indemnity clause was triggered by an allegation that Hall’s injuries were caused in whole or in part by Brent Scarbrough’s negligence. While Hall’s complaint failed to specifically identify the entities involved in the construction work, the record shows that Brent Scarbrough’s contract with D. R. Horton included responsibility for “traffic control” and “safety barriers” and “temporary signage” for the use of “all project personnel”; and there is evidence that Brent Scarbrough’s construction barrels had been moved that day. Giving the unambiguous terms of the contract their plain meaning, including the provision that indemnity was not to be limited in any way, Brent Scarbrough was not entitled to summary judgment on this issue.

Case No. A11A0545

4. D. R. Horton contends that the trial court erred in denying its motion for summary judgment on its claim that Brent Scarbrough breached the indemnification agreement.

The scope of a written indemnification contract is a question of law for the court, which must strictly construe the contract against the indemnitee. If the language of a contract is clear and unambiguous, we will enforce its terms as written.

As shown in Division 3 (c), above, the construction contract between Brent Scarbrough and D. R. Horton provided, in pertinent part, that Brent Scarbrough would indemnify D. R. Horton for any claim

arising out of or resulting from the performance of [Brent Scarbrough’s] Work provided that . . . any such claim ... is attributable to bodily injury ... or to injury to . . . property, .. . to the extent caused or alleged to be caused in whole or in part by any negligent act or omission, or the breach of this Agreement by [Brent Scarbrough], or anyone directly or indirectly employed by [Brent Scarbrough] or anyone for whose acts [Brent Scarbrough] may be liable, regardless of whether it is caused in part by a party indemnified hereunder. . . . This indemnification shall not be limited in any way.

The terms of the indemnity provision in the construction contract between D. R. Horton and Brent Scarbrough are clear. They require Brent Scarbrough to indemnify D. R. Horton for any claim arising out of Brent Scarbrough’s work, to the extent the injury is alleged to be caused in whole or in part by Brent Scarbrough’s negligence or breach of the agreement; and the terms do not limit indemnification in any way. And, as indicated above, the phrase “arising out of” in an indemnity clause means “had its origins in” or “grew out of” and encompasses “almost any causal connection or relationship.”

Hall’s complaint alleged deficiencies in traffic control during construction along Pleasant Hill Road: the John Doe contractor

knew, or should have known, that the failure to adequately mark the lane closure created a hazard to Plaintiff and as well as failing to properly [set] out warning signs at the construction site and in failing to take any other positive steps to reduce the hazard and danger to others such as Plaintiff on the roadway.

The complaint also alleged, inter alia, that D. R. Horton was negligent in entrusting the site to John Doe and failing to properly supervise or train John Doe.

That Hall failed to specifically name Brent Scarbrough is immaterial, as he expressly alleged the negligence of a John Doe contractor regarding traffic control and lane closure as contributing to the cause of the accident; and D. R. Horton alleged and pointed to evidence that Brent Scarbrough, which was performing excavation work on the project that day, had contractual responsibility to furnish traffic control services, safety barriers, and temporary signage for all project personnel. The allegations came within the indemnity provision. Therefore, the trial court erred in denying D. R. Horton’s motion for summary judgment on the indemnification claim.

Judgments affirmed in Case Nos. A11A0542, A11A0543 and A11A0544. Judgment reversed in Case No. A11A0545.

McFadden, J., concurs. Andrews, J., concurs in the judgment only.

Decided July 28, 2011.

Temple, Strickland, Dinges & Schwartz, Jason B. Schwartz, Hicks, Casey & Foster, Richard C. Foster, Andrea A. Guariglia, Penna & Mendicino, Christopher E. Penna, for appellants.

Hobgood & Rutherford, Thomas T. Hobgood, David A. Rutherford, Julia N Haesemeyer, Mark E. Layng, Lynn D. Betz, for appellees.

        Ford v. Bank of America Corp., 277 Ga. App. 708 (627 SE2d 376) (2006).

        Field v. Lowery, 300 Ga. App. 812 (686 SE2d 422) (2009).

        BBL-McCarthy, LLC v. Baldwin Paving Co., 285 Ga. App. 494, 498 (646 SE2d 682) (2007) (citation and footnote omitted).

       Id. (punctuation omitted).

       Brent Scarbrough was another contractor involved in constructing the subdivision.

       See BBL-McCarthy, supra.

        Penn-America Ins. Co. v. Disabled American Veterans, 268 Ga. 564, 565-566 (490 SE2d 374) (1997).

        BBL-McCarthy, supra at 497-498 (1) (a).

       Id. at 498 (1) (a).

       See generally id.

        Ins. Co. of Pa. v. APAC-Southeast, 297 Ga. App. 553, 557 (677 SE2d 734) (2009).

        Auto-Owners Ins. Co. v. Anderson, 252 Ga. App. 361, 364 (2) (556 SE2d 465) (2001) (punctuation omitted); see OCGA § 51-12-32 (c).

       288 Ga. App. 473 (654 SE2d 434) (2007).

       Id. at 476 (2) (indemnitee’s own conduct in allowing case to go into default caused indemnitee’s loss, and such a loss was not covered by language of indemnification provision).

        Guaranty Nat. Ins. Co. v. Brock, 222 Ga. App. 294, 295 (1) (474 SE2d 46) (1996).

       Id.

        Plantation Pipeline Co. v. Royal Indem. Co., 245 Ga. App. 23, 25 (1) (537 SE2d 165) (2000) (citations and punctuation omitted).

       See id.

        Gibson v. Dempsey, 167 Ga. App. 23, 25 (306 SE2d 32) (1983) (citation and punctuation omitted).

        Southeastern Express Systems v. Southern Guaranty Ins. Co., 224 Ga. App. 697, 701 (482 SE2d 433) (1997).

        Grange Mut. Cas. Co. v. Snipes, 298 Ga. App. 405, 407 (1) (680 SE2d 438) (2009); BBL-McCarthy, supra at 499 (1) (b).

        Southern Guaranty Ins. Co. v. Miller, 183 Ga. App. 261, 263 (358 SE2d 611) (1987) (a trial court’s determination that a delay of about 14 months was “justified by the insured’s conclusion that the accident was not of sufficient severity to involve the insurer”).

       Language in a policy endorsement which Westfield Insurance cites in its brief is inapplicable here, as that endorsement applies to completed operations and Brent Scar-brough’s work was ongoing at the time of the accident.

       See generally Ins. Co. of Pa., supra at 560.

       See Gibson, supra.

       See Forshee v. Employers Mut. Cas. Co., 309 Ga. App. 621, 623 (711 SE2d 28) (2011); Guaranty Nat. Ins. Co., supra at 295 (1).

        Guaranty Nat. Ins. Co., supra.

        Plantation Pipeline Co., supra.

       See Southern Guaranty Ins. Co., supra (citation and punctuation omitted).

       Id.

       See BBL-McCarthy, supra at 500-601 (2) (the phrase “arising out of” in an indemnity clause means “had its origins in” or “grew out of” and encompasses almost any causal connection or relationship).

       See Nat. Service Indus. v. Ga. Power Co., 294 Ga. App. 810, 812 (1), n. 4 (670 SE2d 444) (2008).

        SRG Consulting v. Eagle Hosp. Physicians, 282 Ga. App. 842, 844 (640 SE2d 306) (2006) (punctuation and footnote omitted).

       (Emphasis supplied.)

       BBL-McCarthy, supra (citation omitted).

       See id. (“the claims at issue here clearly arose out of the subcontractors’ work on [the] project regardless of any specific division of fault between them and BBL”).


author: Adams, Judge. BLACKWELL, Judge,

text:
    A11A0047.
    A11A0134.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. NORTH et al. NORTH et al. v. DEBOSE et al.
    (714 SE2d 428)
   Adams, Judge.

The underlying facts in the uninsured/underinsured motorist (UM) case are undisputed. Plaintiff/appellee Ricky North was injured in a collision between an automobile and the motorcycle he was riding in August 2007. He and his wife subsequently brought suit against the driver of the vehicle, and additionally sought to recover $250,000 in UM coverage under North’s motor vehicle insurance policy and $1,000,000 in UM coverage under an umbrella insurance policy issued to him by appellant Georgia Farm Bureau Mutual Insurance Company (GFB). The Norths subsequently filed a motion for partial summary judgment against GFB on the issue of their entitlement to UM benefits under the umbrella policy, and GFB filed a response and an opposing motion for summary judgment, contending that the Norths were not entitled to UM coverage under the umbrella policy because Ricky North had rejected UM coverage in writing at the time he applied for the policy. The trial court granted the Norths’ motion for partial summary judgment and denied GFB’s motion. GFB then filed the present appeal, which was docketed in this Court as Case No. A11A0047. The Norths also filed a cross-appeal, which was docketed in this Court as Case No. A11A0134, challenging portions of the trial court’s factual findings, and arguing that summary judgment was proper here for the additional reason that GFB placed an impermissible condition on their ability to obtain uninsured motorist coverage. We have consolidated the main appeal and cross-appeal, and now affirm the judgment of the trial court.

The starting point for our analysis is OCGA § 33-7-11 (a). In pertinent part, subsection (a) (1) of the relevant version of that statute provided:

No automobile liability policy or motor vehicle liability policy shall be issued or delivered in this state . . . unless it contains an endorsement or provisions undertaking to pay the insured all sums which said insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle, within limits exclusive of interests and costs which at the option of the insured shall be:
(A) Not less than $25,000.00 because of bodily injury to or death of one person in any one accident, . . . ; or
(B) Equal to the limits of liability because of bodily injury to or death of one person in any one accident... if those limits of liability exceed the limits of liability set forth in subparagraph (A) of this paragraph of this Code section. In any event, the insured may affirmatively choose uninsured motorist limits in an amount less than the limits of liability. . . .

Pursuant to subsection (a) (3) “[t]he coverage required under paragraph (1) of this subsection shall not be applicable where any insured named in the policy shall reject the coverage in writing.”

The application North completed at the time the umbrella policy was issued contained the following:

VIII. UNINSURED/UNDER INSURED MOTORISTS COVERAGE:
A. DO YOU DESIRE UNINSURED/UNDER INSURED MOTORIST COVERAGE:
□ YES. IF YES, THE UM-UI LIMITS FOR THE UNDERLYING POLICY MUST EQUAL THE BI AND PD LIMITS OF THE UNDERLYING AUTOMOBILE LIABILITY POLICY.
□ NO. IF NO, THE UNDERSIGNED CERTIFY THAT IN CONSIDERATION OF PREMIUM CHARGED, I DO NOT DESIRE THE UMBRELLA LIABILITY POLICY TO
APPLY TO UNINSURED/UNDER INSURED MOTORISTS COVERAGE.

Ricky North checked the “NO” box.

On appeal, GFB argues the trial court erred by granting the Norths’ motion for summary judgment and denying its motion because the governing statute only imposes one requirement in order for there to be a valid rejection of UM coverage under OCGA § 33-7-11 (a) (3) — that such rejection be in writing — and that requirement was met here. See Nat. Union Fire Ins. Co. v. Johnson, 183 Ga. App. 38, 39 (357 SE2d 859) (1987) (rejection must be in writing but no further formal requisites pertain to the rejection of UM coverage). Further, GFB argues “[a] written rejection pursuant to OCGA § 33-7-11 (a) (3) eliminates the necessity to offer optional coverages under OCGA § 33-7-11 (a) (1).” However, in our view GFB has mis-framed the issue because the assumption underlying its argument is that the rejection of coverage in this case was binding and proper, which is, in fact, the issue to be decided here. We find that it was not, and thus agree with the trial court that the Norths were entitled to UM coverage up to the limits of liability of the umbrella policy.

Before we begin our analysis, we note the following overarching considerations. “Under Georgia law, an insurance company is free to fix the terms of its policies as it sees fit, so long as they are not contrary to the law. However, provisions in insurance policies that conflict with the plain terms of Georgia’s insurance statutes are illegal and of no effect.” (Punctuation and footnote omitted.) Abrohams v. Atlantic Mut. Ins. Agency, 282 Ga. App. 176, 181 (638 SE2d 330) (2006). As to uninsured motorist coverage, Georgia law requires that an insured under an automobile or motor vehicle liability coverage policy be given the option of rejecting uninsured/under-insured motorist coverage, selecting minimum coverage or selecting coverage up to the limits of liability under the policy, OCGA § 33-7-11 (a), and GFB acknowledges that those requirements applied to umbrella policies as well as primary policies at the time the umbrella policy was issued here. Abrohams, 282 Ga. App. at 181. However, it is equally true, as GFB argues and the Norths acknowledge, that there are no formal, statutory requirements or appellate court decisions governing how and in what manner the insurer must offer the available options for uninsured motorist coverage, just as there are no formal requirements governing the manner in which such coverage must be rejected, beyond requiring that rejections must be in writing, and it is for the legislature and not this Court to further specify how these requirements are to be met. Nat. Union Fire Ins. Co. v. Johnson, 183 Ga. App. at 39. Further, in deciding issues relating to uninsured motorist coverage, we must remember the legislative intent behind the uninsured motorist statute:

The purpose of uninsured motorist legislation is to require some provision for first-party insurance coverage to facilitate indemnification for injuries to a person who is legally entitled to recover damages from an uninsured motorist, and thereby to protect innocent victims from the negligence of irresponsible drivers. Uninsured motorist statutes are remedial in nature and must be broadly construed to accomplish the legislative purpose.

(Citations and punctuation omitted.) Smith v. Commercial Union Assurance Co., 246 Ga. 50, 51 (268 SE2d 632) (1980).

With those considerations in mind, we now turn to the facts of this case. It appears undisputed that North was not informed about the coverage options available to him under his umbrella policy, although it is true, as GFB also argues, that it does appear that North knew about the possibility of obtaining uninsured motorist coverage under the umbrella policy, since the possibility of obtaining such coverage was indicated on the application for the umbrella policy. Although in our view the better policy would require the insurer to inform the insured of all his or her uninsured coverage options before the insured makes any decision regarding uninsured motorist coverage so that the insured can make an informed election or rejection of such coverage, in this case it is unnecessary for us to decide whether GFB’s failure to inform North of his uninsured motorist coverage options invalidated his rejection of such coverage because the facts here show that in addition to not informing North about his coverage options, an impermissible condition was imposed on North’s ability to obtain such coverage as well. Specifically, that condition appeared beside the “yes” option on the application, notifying North that the only way he could obtain uninsured motorist coverage under his umbrella policy would be to increase his uninsured coverage limits in his primary liability insurance policies to equal the bodily injury and property damage limits of those policies. Indeed, GFB’s underwriter testified that North would have only ‘qualified” for uninsured motorist coverage under the umbrella policy if this condition was met. Thus, while the application may have informed North of the possibility of obtaining uninsured motorist coverage under his umbrella policy, it misinformed him that he could only obtain that coverage if his uninsured motorist coverage in his primary automobile liability policies equaled his coverage limits under those policies. This clearly contravened the requirement that existed at the time the umbrella policy was issued here that umbrella policies that provided automobile and liability coverage be treated the same as primary automobile and motor vehicle liability insurance policies with respect to the statutory requirements governing uninsured motorist coverage. Moreover, although GFB’s underwriter testified that once North rejected uninsured motorist coverage under his umbrella policy he was not entitled to such coverage no matter what subsequent action he took in regard to the primary policies, it is also evident that because of the way in which the application was worded, once North chose not to meet the condition specified under the “yes” option, the only other option was to reject uninsured coverage, which he did. Just as an insurer generally cannot carve out exclusions when extending uninsured motorist coverage, see, e.g., Wagner v. Nationwide Mut. Fire Ins. Co., 288 Ga. App. 132 (653 SE2d 526) (2007), we do not believe that an insurer can impose conditions to obtaining such coverage which the law does not allow. Compare Crouch v. Federated Mut. Ins. Co., 257 Ga. App. 604, 606 (571 SE2d 574) (2002) (“As long as the mandatory UM minimum is met and optional UM coverage is offered pursuant to statutory requirements, a combination of sublimits and interests . . . contravenes neither the law nor public policy.”) (Punctuation omitted; emphasis supplied). The statute clearly provided the UM coverage options from which the insured could elect, and those options were never available to the insured in this case because he did not increase his uninsured motorist coverage limits in his primary liability automobile insurance policies to equal the amount of his liability coverage limits in those policies. Under the circumstances of this case, we find that the rejection of UM coverage, although in writing as required by the statute, was not binding, and the Norths were entitled to UM coverage in the amount of the umbrella policy’s $1,000,000 liability limits. Abrohams, 282 Ga. App. at 180 (1). Thus, the trial court did not err by granting the Norths’ motion for partial summary judgment, and denying GFB’s motion.

Judgments affirmed.

Ellington, C. J., Barnes, B J., Miller, P. J., and Phipps, P J., concur. Doyle and Blackwell, JJ., dissent.

BLACKWELL, Judge,

dissenting.

Because the majority undertakes today to rewrite the clear and unambiguous terms of a statute, I respectfully dissent. The relevant statute is, as the majority explains, the version of OCGA § 33-7-11 that was effective in March 2003, when the umbrella policy at issue in this case was issued. Paragraph (a) (1) of that version of the statute provides that, when an insurer issues or delivers an automobile or motor vehicle liability policy, it must make provision for uninsured motorist coverage and permit the insured to choose the limits of such coverage from among the options set forth in the statute:

No automobile liability policy or motor vehicle liability policy shall be issued or delivered in this state . . . unless it contains an endorsement or provisions undertaking to pay the insured all sums which said insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle, within limits exclusive of interests and costs which at the option of the insured shall be:
(A) Not less than $25,000.00 because of bodily injury to or death of one person in any one accident . .. ; or
(B) Equal to the limits of liability because of bodily injury to or death of one person in any one accident. . . which is contained in the insured’s personal coverage in the automobile liability policy or motor vehicle liability policy issued by the insurer to the insured if those limits of liability exceed the limits of liability set forth in subpara-graph (A) of this paragraph of this Code section. In any event, the insured may affirmatively choose uninsured motorist limits in an amount less than the limits of liability.

OCGA § 33-7-11 (a) (1) (2002). But there is an exception to this requirement. Paragraph (a) (3) of the statute provides that “[t]he coverage required under paragraph (1) of this subsection shall not be applicable where any insured named in the policy shall reject the coverage in writing.” OCGA § 33-7-11 (a) (3) (2002).

Reading paragraphs (a) (1) and (a) (3) together, the statutory scheme is rather evident: When an insurer chooses to write an automobile or motor vehicle liability policy of insurance, the insurer must provide uninsured motorist coverage and permit the insured to choose the limits of this coverage from among the statutory options at the time the insurer “issue[s] or deliver[s]” the policy unless the insured already has rejected uninsured motorist coverage in writing, in which event the insurer owes him neither coverage nor a choice about the limits of such coverage. The words of the statute are clear and unambiguous; they mean exactly what they say, nothing more, nothing less. Here, it is undisputed that Ricky North rejected uninsured motorist coverage in writing before Georgia Farm Bureau issued or delivered the umbrella policy at issue. That fact alone ought to be enough to resolve this case.

The majority, however, concludes that North did not effectively reject uninsured motorist coverage because, the majority says, Georgia Farm Bureau affirmatively misled North about his entitlement to such coverage. According to the majority, the written application for insurance that North signed is misleading because it suggests that uninsured motorist coverage is available under an umbrella policy only to the extent that the insured carries uninsured motorist coverage in his underlying, primary insurance policies with limits equal to the limits of coverage for bodily injury and property damage in the primary policies. That is, of course, exactly what the application says, but there is nothing misleading about it. Indeed, it is undisputed that, when North applied for an umbrella policy, Georgia Farm Bureau had adopted underwriting guidelines that permitted an umbrella policy with uninsured motorist coverage to issue only if the insured had uninsured motorist coverage in his primary insurance policies with the required limits.

Decided July 14, 2011

Reconsideration denied July 29, 2011

James, Bates, Pope & Spivey, Lee M. Gillis, Jr., Duke R. Groover, for Georgia Farm Bureau Mutual Insurance Company.

The majority seems to think that such an underwriting guideline itself violates OCGA § 33-7-11 (a). But nothing in the statute requires anyone to write a policy of insurance; it only requires an insurer, when it does write a covered policy, to provide uninsured motorist coverage unless the coverage is rejected. To be sure, an insurer cannot write a policy but refuse to write it as the law requires, refusing, for instance, to provide the statutory coverage simply because the insured does not meet some underwriting requirement that the insurer has adopted when the insured has not rejected coverage. But the insurer can decide to issue no policy at all when an insured does not qualify for uninsured motorist coverage under its underwriting guidelines and has not rejected the coverage in writing. See Trinity Outdoor v. Central Mut. Ins. Co., 285 Ga. 583, 584 (1) (679 SE2d 10) (2009) (insurers may agree to insure against certain risks while declining to insure against others). And that is precisely what Georgia Farm Bureau would have done in this case, if North had not rejected uninsured motorist coverage and did not qualify for it under the underwriting guidelines. In such an event, according to the undisputed testimony of a Georgia Farm Bureau agent, the underwriters “would have rejected [the application] and sent it back.” Nothing in the clear and unambiguous provisions of OCGA § 33-7-11 forbids the insurer to refuse to issue a policy in such circumstances. Because we ought not undertake by judicial fiat to require an insurer to write a policy that it does not wish to write and that no statute requires it to write, I respectfully dissent. See Anthony, 287 Ga. at 450 (1) (a).

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

Wallace Miller III, Charles W. Watwood, Jr., for North.

Bridges, Ormand & Faenza, Alvin L. Bridges, Jr., for Debose.

Joseph D. Perrotta, for Travelers Home and Marine Insurance Company.

       The umbrella policy was issued in March 2003, and OCGA § 33-7-11, as amended in 2001 (effective to policies issued on or after January 1, 2002), applies here. Ga. L. 2001, p. 1228, § 3. The statute was subsequently amended to exclude umbrella or excess liability policies “unless affirmatively provided for in such policies or in a policy endorsement.” Ga. L. 2008, p. 1192, § 1.

       The trial court in this case found that North was offered UM coverage equal to the liability limits of the policy, but was not offered the minimum limits of UM coverage. Although the basis of the trial court’s finding is not clear from the order on partial summary judgment, we do note that at the hearing on the motions, counsel for the Norths made the following statement about the language beside the “yes” box on the umbrella policy application. “ ‘If yes, the UMUI limit’ — being uninsured motorist limits — ‘with an underlying policy must equal the bodily injury and property damage limits of the underlying policy.’ ” Although the actual language on the application reads in full as follows: “Yes. If yes, the UM-UI limits for the underlying policy must equal the BI and PD limits of the underlying automobile liability policy,” we can apprehend how the trial court, in light of counsel’s statement, may have concluded that North was in fact “offered” UM coverage equal to the liability limits of the umbrella policy. However, and despite the fact that this language could also be interpreted to mean that North was only given the option of selecting uninsured motorist coverage under his umbrella policy up to the limits of liability of the underlying, or primary, automobile policies, it does appear undisputed that this language does not reference the umbrella policy at all, but rather imposes the requirement that in order to obtain uninsured motorist coverage under his umbrella policy, North had to have, or obtain, uninsured motorist coverage in his underlying, or primary, automobile liability policies with limits equal to the bodily injury and property damage coverage provided in those primary policies.

       North’s uninsured limits in his five liability policies was less than the specified coverage limits in those policies.

       Although it decides this case on another ground, the majority comments on North’s contention that Georgia Farm Bureau was required to inform him of the limits of coverage from which he could choose if he did not decline uninsured motorist coverage altogether and that, absent such a disclosure, his rejection of coverage is ineffective. The majority says that, in its view, “the better policy would require the insurer to inform the insured of all his or her uninsured coverage options before the insured makes any decision regarding uninsured motorist coverage so that the insured can make an informed election or rejection of such coverage.” Requiring such a disclosure might well be good policy, as the majority says, but we cannot properly accept North’s contention because we are supposed to concern ourselves with law and leave questions of policy to the General Assembly. See Robinson v. Boyd, 288 Ga. 53, 56 (2) (701 SE2d 165) (2010) (under our constitutional separation of powers, the General Assembly may rewrite an unambiguous statute if it so chooses, but the courts cannot); Commonwealth Investment Co. v. Frye, 219 Ga. 498, 499 (134 SE2d 39) (1963) (the General Assembly, not the courts, has the power to decide public policy and implement that policy by enacting laws). And the applicable statute in this case says nothing at all about disclosures. We have said before that the statute only requires that a rejection of coverage be in writing, and “[i]f the legislature had intended any further formal requisites for the rejection of uninsured motorist benefits, we must presume it would have specified them.” Nat. Union Fire Ins. Co. v. Johnson, 183 Ga. App. 38, 39 (357 SE2d 859) (1987). Although North urges that the failure of Georgia Farm Bureau to disclose information to North about his statutory options vitiates his rejection of uninsured motorist coverage, for this Court to so hold would require us to “rewrite [the] statute! 1 to promote policies that are not expressed in that legislation,” see Anthony v. American Gen. Financial Svcs., 287 Ga. 448, 450 (1) (a) (697 SE2d 166) (2010), something that we ought not do.


author: BARNES, Presiding Judge.

text:
    A11A0118.
    BELL v. THE STATE.
    (715 SE2d 684)
   BARNES, Presiding Judge.

Following his 2005 conviction for rape, James Arness Bell appeals from the denial of his motion for new trial. He contends that the trial court erred in admitting evidence of a prior transaction for which he was acquitted, and erred in denying his motion for mistrial when prejudicial statements were made during voir dire. Upon our review, we reverse.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Hall v. State, 292 Ga. App. 544, 545 (664 SE2d 882) (2008). We do not weigh the evidence or consider witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Id.

So viewed, the evidence shows that in November 2003, during a group counseling session at the Youth Detention Center (YDC) in Pelham, the then-14-year-old victim made an outcry to her counselor that she had been raped. She described the details of the rape, and named Bell as the person who raped her. The matter was referred to the Department of Family and Children Services, who thereafter contacted law enforcement agencies. An investigator with the GBI interviewed the victim who told the officer that the rape occurred in late August 2003. She stated that she was approached by Bell as she walked home from a friend’s house at approximately 11:00 p.m. When she rebuked his attention, Bell grabbed her by the shirt and told her to come with him. He took her to an abandoned house, and when she refused to take her clothes off, struck her several times. Bell removed her pants and underwear and raped the victim. Bell told the victim that if she told anyone about the rape, he would kill her or her family. She told the investigator that she did not tell anyone until November because she was afraid, and believed that she was safe inside the YDC because Bell could not get to her.

1. Bell contends the trial court erred when it permitted the State to present evidence of a 1996 similar transaction in which Bell allegedly followed the 17-year-old victim as she walked alone at night and, after forcing her into the woods then an abandoned house, repeatedly raped her. After a trial, at which Bell maintained that it was consensual sex, he was acquitted. The trial court conducted a pre-trial hearing, and after making findings required by Williams v. State, 261 Ga. 640, 641-642 (2) (409 SE2d 649) (1991), it allowed into evidence the 1996 acquittal to show course of conduct.

When prosecuting an independent crime, use of evidence of a prior offense is generally inadmissible. It may be admitted, however, if there be shown some logical connection between the two from which it can be said that proof of the one tends to establish the other.

(Citations and punctuation omitted.) Riley v. State, 181 Ga. App. 667, 668 (1) (353 SE2d 598) (1987). However,

evidence of prior criminal misconduct on the part of a defendant which would otherwise be relevant and admissible to prove identity, motive, bent of mind, or course of conduct is rendered inadmissible under the doctrine of collateral estoppel where the defendant has been tried and acquitted of the alleged prior offense.

Banks v. State, 185 Ga. App. 851, 851-852 (366 SE2d 228) (1988) (quoting Moore v. State, 254 Ga. 674, 675 (333 SE2d 605) (1985)).

Although some jurisdictions have adopted a per se rule prohibiting any evidentiary use of independent offenses where an acquittal was obtained, [our courts have] not. Instead, the application of collateral estoppel requires an examination of what facts were in issue and necessarily resolved in the defendant’s favor at the first trial.

(Citations and punctuation omitted.) Salcedo v. State, 258 Ga. 870 (376 SE2d 360) (1989). Specifically, “it must be determined whether an issue that was in dispute in the previous trial — and resolved in the defendant’s favor — is what the state is now trying to establish in this trial, notwithstanding the previous acquittal.” Id. at 870-871.

In the 1996 trial, Bell admitted performing the act but denied that he acted with the intent to rape, instead claiming consensual sex. Thus, his identity and “the fact [he] performed the acts [were] not in dispute and not necessarily resolved in [his] favor.” Moore v. State, 254 Ga. at 677. That he acted with the intent to rape was an issue resolved in his favor.

In this case, Bell claimed that he did not know the victim, and had not raped her; thus identity was one of the purposes for which the State sought to have the similar transaction evidence admitted. The State presented evidence that in the 1996 case, Bell approached the victim, and after being rebuffed, forced her to go with him to an abandoned building where he then had sex with her, which the State argued was similar to the modus operandi alleged in the present case.

Identity was not an issue in the 1996 case, as Bell had claimed the act was consensual. Thus, as identity and commission of the act were not at issue in the first trial, the prior transaction evidence was proper and not foreclosed by collateral estoppel, and the evidence of the prior transaction was admissible. See Cartwright v. State, 242 Ga. App. 825, 827 (1) (531 SE2d 399) (2000); cf. Salcedo v. State, 258 Ga. at 870 (identity not an issue and intent was resolved in defendant’s favor by the previous acquittal for rape, thus the State was precluded under the collateral estoppel doctrine from relitigat-ing the issue in his current rape trial); Riley v. State, 181 Ga. App. at 668-669 (1) (where appellant had been found not guilty by reason of insanity of the first assault, the state was collaterally estopped from relitigating her intent in that incident).

2. Bell next contends that the trial court erred in denying the motion for mistrial that he made after a question from a prospective juror. During voir dire, the juror stated that he had heard of a person named James Bell who was accused of a previous sexual assault in another county, and asked if it was the same person because the victim in that assault was his grandmother. The State responded: “Your grandmother is [name omitted]?” To which the juror responded: “My grandmother is Ardella [name omitted].” When questioned if he knew James Bell, the juror responded that he did not, but wondered if it was the same person. The State then responded: “I can’t go into the past. That’s what the judge was getting at and that’s what I’m getting at. We can’t talk about what happened in the past, just talking about today.” The juror was then asked whether his relationship with his grandmother would affect his ability to be fair and impartial, he responded that “I would hope so. I guess I could because I don’t know James Bell. I can’t say that I know him.”

Defense counsel requested to approach the bench; the discussion was not reported, but the trial court later indicated that Bell had moved for a mistrial based on the juror’s remark about the alleged (name omitted) rape. During the hearing on the motion, Bell argued that the juror’s remark about the past rape had tainted the remainder of the panel. The trial court denied defense counsel’s motion.

It is true that since a jury had not yet been impaneled and sworn to try the case, the motion for mistrial was premature. The proper procedural tool for the defense to have used was either a “challenge to the poll” or a motion for a postponement to impanel other jurors who had not heard the remark. However, regardless of the label which defense counsel placed on his motion, his import was clear, i.e., that the prospective jurors had been prejudiced by the remarks and that the appellant was entitled to a new panel from which to choose a jury to hear his case.

(Citations and punctuation omitted.) Lingerfelt v. State, 147 Ga. App. 371, 373 (1) (249 SE2d 100) (1978). “When prejudicial matter is improperly placed before the jury, a mistrial is appropriate if it is essential to the preservation of the defendant’s right to a fair trial.” (Citation omitted.) White v. State, 268 Ga. 28, 32 (4) (486 SE2d 338) (1997). Due process requires “a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.” Smith v. Phillips, 455 U. S. 209, 217 (II) (102 SC 940, 71 LE2d 78) (1982).

Whether the statements are so prejudicial as to warrant a mistrial is within the trial court’s discretion. A trial court’s denial of a motion for mistrial based on the improper admission of bad character evidence is reviewed for abuse of discretion by examining factors and circumstances, including the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.

(Citations and punctuation omitted.) White v. State, 268 Ga. at 32 (4).

Here, although the prospective juror at issue said he was not sure if the defendant was the same James Bell accused of raping his grandmother, rather than leave the question unanswered, and move on to another juror, the State elicited more information from the juror. Specifically, the State asked if the juror’s grandmother was “[name omitted]” thereby providing the other prospective jurors with the name of another alleged rape victim in a crime for which Bell was not on trial. Moreover, the trial court did not undertake any measures to ascertain what, if any, impact the remark had on the panel’s ability to decide the case. The State elected not to use evidence of the alleged rape as a similar transaction, and thus it is not a circumstance in which the jury would have heard the incriminating evidence during the trial.

Decided July 5, 2011

Reconsideration denied July 29, 2011.

Billy M. Grantham, for appellant.

Joseph K. Mulholland, District Attorney, Charles E. Rooks, Assistant District Attorney, for appellee.

“This [evidence] was inherently prejudicial and deprived [Bell] of his right to begin his trial with a jury free from even a suspicion of prejudgment or fixed opinion.” (Citation and punctuation omitted.) Lingerfelt v. State, 147 Ga. App. at 373 (1). Because the trial was tainted from the beginning, Bell’s conviction must be reversed.

Judgment reversed.

Adams and Blackwell, JJ., concur.

On Motion for Reconsideration.

On Motion for Reconsideration, the State contends that evidence of the rape mentioned during voir dire was introduced as similar transaction evidence, and thus there was no error because the jury heard the incriminating evidence at trial. Our review of the record however, is consistent with our holding in the case in that the similar transaction evidence of that rape was not introduced at trial. In its motion for reconsideration, the State cited page 146 of the trial transcript, at which it introduced as similar transaction evidence the rape of 17-year-old A. M., through the testimony of the victim who was then 26 years old. The victim mentioned during voir dire was A. C., the grandmother of one of the prospective jurors — clearly not the same victim who testified during trial. Moreover, the record includes the State’s similar transaction notice under Uniform Superior Court Rule 31.1 of only the rape of A. M.; A. C.’s rape was not mentioned in the notice. Thus, as the State’s record cite is inaccurate,. and there being no other indication in the record that the jury heard evidence of the rape mentioned during voir dire, the State’s motion for reconsideration is hereby denied.

Motion for reconsideration denied.


text:
    A11A0196.
    FRAZIER v. THE STATE.
    (715 SE2d 712)
   BARNES, Presiding Judge.

This is the second appearance of this case in this Court. Allen Lee Frazier was convicted of aggravated assault and possession of a firearm during the commission of a crime. In Frazier v. State, 298 Ga. App. 487, 490-491 (1) (680 SE2d 553) (2009) (“Frazier 7”), we reversed Frazier’s conviction after finding that his statement was obtained in violation of Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), and that defense counsel’s failure to object to the admission of the statement during the State’s case-in-chief was deficient and prejudicial.

Frazier was retried and before Frazier’s second trial, the trial court held that, while his statements were inadmissible for use in the case-in-chief, they were voluntary and thus potentially admissible to impeach him if he testified. Frazier did not testify, and a jury, once again, found him guilty of the same offenses, and he was sentenced to twenty years to serve seven.

He now appeals, contending that the trial court erred in finding his custodial statement voluntary and that its decision prevented him from testifying at trial, thus violating his Fifth and Sixth Amendment rights. Upon our review, we affirm.

Viewed in the light most favorable to the verdict, the evidence shows that on the night of May 16, 2005, Frazier’s wife drove him to the victim’s machine shop, at which Frazier worked and in which he had a partnership interest. Frazier and the victim had recently disagreed about the financial arrangement. Frazier’s ex-wife testified that Frazier believed that the victim was selling business equipment without his knowledge, and had gone to the business that night to “spy on [the victim] a little bit.” The victim was working when Frazier and his wife arrived. According to his ex-wife, after sitting outside one of the bay doors for approximately fifteen minutes, Frazier stepped out of the vehicle, stood with one foot inside the vehicle, and pointed his arm straight “up in the air,” and then she heard rapid gunshots. Because the casings fell directly onto her car, she assumed that Frazier fired a gun into the air. She testified that she did not see the gun or which way Frazier pointed the gun. The victim testified that he saw Frazier standing next to the ex-wife’s car near the bay door, and when he heard the gunshots he jumped into a nearby vehicle. He later called police and reported the incident. The police arrested Frazier and transported him to the police station for questioning.

Before the first trial, trial counsel waived a Jackson-Denno hearing to determine if Frazier’s statement was voluntary, and the State played the videotape of the custodial interview during its case-in-chief, without objection. Frazier I, 298 Ga. App. at 488. Frazier also testified during the first trial. In Frazier I, we noted that the State conceded that Frazier’s statement was obtained in violation of Miranda because, per the videotape interrogation, Frazier repeatedly asked to speak to his lawyer, but the police continued to question him thereafter. Id. at 489-490 (1). We further noted that “[i]n the videotape of Frazier’s custodial interrogation, he appears to be intoxicated, and he repeatedly uses profanity.” Id. at 490 (1). In reversing, we held that “[pjretermitting whether Frazier’s statement was voluntary, it was simply not admissible during the prosecution’s case-in-chief.” Id.

Before the second trial, the trial court conducted a Jackson-Denno hearing to address Frazier’s contention that the statements made during his interrogation were involuntary and inadmissible for purposes of impeachment. The trial court found that

the statements of [Frazier] were voluntary. The Court has examined the videotape and watched it very closely in regard to [Frazier], not just his words he spoke, but the manner in which he spoke them, his demeanor, all the circumstances [for] the purpose of determining [Frazier’s] ability to understand what he’s doing and the extent of his intoxication. And the Court concludes that he was making knowing and intelligent statements and that they were voluntary. I’ll mention, merely anecdotal[ly], when the officer was reciting [Frazier’s] rights, [Frazier] recited the first two before the officer could finish them. Clearly, he had an understanding of what was taking place and the consequences of any statement that he might make.

The trial court then ruled that Frazier’s statements were voluntary and admissible for impeachment purposes, but that it would reserve ruling on each statement’s “relevance and the prejudicial effect. . . subject... to the issue being placed before the court by objection.” In electing not to testify, Frazier stated for the record that “if the Court had ruled that [his statement] was involuntary and couldn’t be used, that he would be testifying.”

1. In his sole enumeration of error, Frazier contends that his Fifth and Sixth Amendment rights were violated because the trial court erroneously found that his custodial statement was voluntary and admissible for impeachment purposes, and that, but for the ruling, he would have testified at trial.

Although a statement obtained in violation of Miranda may not be used in the prosecution’s case-in-chief, it may be used to impeach the defendant’s credibility if its trustworthiness meets legal standards. This test means that a court must find that the statement is voluntary under traditional due process analysis.

(Footnote omitted.) Linares v. State, 266 Ga. 812, 813 (2) (471 SE2d 208) (1996). The burden is on the prosecution to show the voluntariness of a custodial statement by a preponderance of the evidence. Kunis v. State, 238 Ga. App. 323 (1) (518 SE2d 725) (1999), overruled in part on other grounds by Vergara v. State, 283 Ga. 175, 178 (1) (657 SE2d 863) (2008). Voluntariness is determined based upon the totality of the circumstances. Atwater v. State, 233 Ga. App. 339, 343 (4) (503 SE2d 919) (1998). Factual and credibility determinations made by a trial judge after a voluntariness hearing must be accepted by appellate courts unless they are clearly erroneous. Kunis, 238 Ga. App. at 323-324.

The videotape of Frazier’s custodial statement was State’s Exhibit 29 at the first trial, and was also apparently played at the Jackson-Denno hearing before the second trial. However, neither the videotape nor a transcript of it is included in the appellate record. Frazier argues that his custodial statement was involuntary because it was conducted while he was obviously intoxicated, and was the product of unlawful interrogation that continued after he invoked his rights to counsel and to remain silent.

The mere fact that a defendant was intoxicated at the time of the statement does not render it inadmissible. Mullis v. State, 248 Ga. 338, 340-341 (9) (282 SE2d 334) (1981). Although Frazier maintains that the videotape reflects the “effects of the copious amount of alcohol” he consumed, that he was “drunk,” and that he “exhibited poor physical and mental coordination,” we have not been provided with the videotape. As a result, our review is limited to the other evidence presented at the Jackson-Denno hearing.

At the hearing, the police officer who conducted the interview testified that although Frazier appeared to be under the influence of alcohol, he also appeared to understand what was going on, and his answers were responsive. The officer testified that he had on previous occasions witnessed people who, because of their intoxication, were incoherent and unable to comprehend what was happening, but that Frazier was not “in that condition.” The trial court reached the same conclusion after viewing the videotape, and we must accept factual and credibility determinations made by a trial judge after a voluntariness hearing unless clearly erroneous. See Kunis, 238 Ga. App. at 323-324 (1).

Thus, as the videotape of Frazier’s custodial statement was not made available for appellate review, and we must accept the trial court’s factual findings as to the voluntariness of the statements unless clearly erroneous, we affirm the trial court’s ruling. See Shelby v. State, 265 Ga. 118, 119 (2) (453 SE2d 21) (1995).

2. As a result of the trial court’s ruling that his statement was voluntary, Frazier did not testify and therefore the State did not seek to introduce the statement to impeach him. Frazier claims that he was denied his constitutional right to testify because of the trial court’s ruling on the voluntariness issue. However, because we have found that the trial court did not err in finding that Frazier’s statement was voluntary, we need not reach this claim of error. See Linares, 266 Ga. at 814 (3).

Judgment affirmed.

Adams and Blackwell, JJ., concur.

On Motion for Reconsideration.

On motion for reconsideration, Frazier asserts that the absence of the videotape from the appellate record is not his fault, and requests that this Court direct the trial court clerk to produce a copy of his videotaped interrogation for our review.

We note initially, that it is not the responsibility of this Court to ensure that the appellate record is complete. Wheeling-Culligan v. Allen, 243 Ga. App. 776, 777 (533 SE2d 797) (2000). Although it appears that the videotape was included in the appellate record of Frazier I, the remittitur in that case was transmitted to the trial court on July 14, 2009. Per our records retention policy, which is set out in our rules and available to the public and the Bar, the appellate record is held for one year following the issuance of the remittitur, unless a party directs this Court in writing to hold all or part of the record. Court of Appeals Rule 42 (b). There was no hold requested in this case, and our records show that the videotape was returned to the Clerk of Whitfield County Court on December 30, 2010. “It is fundamental that it is the duty of counsel who have cases pending in court to keep themselves informed as to the progress of the cases so that they may take whatever actions may be necessary to protect the interests of their clients.” Bragg v. Bragg, 225 Ga. 494, 496 (170 SE2d 29) (1969).

Moreover, this Court attempted to locate the videotape prior to its review of the present appeal, and the clerk’s office, district attorney’s office, and the court reporter all indicated that they did not have the videotape of Frazier’s interrogation. Further, as Frazier has only now requested that the record be supplemented with the missing videotape, and has moved this Court to direct the trial court clerk to produce a videotape of the record, he obviously made no attempt to ascertain the location of the missing videotape prior to or after the issuance of our opinion.

Pursuant to Court of Appeals Rule 37 (e), this Court will grant 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.

Decided July 29, 2011

Reconsideration denied July 29, 2011.

Pate & Brody, Bernard S. Brody, for appellant.

Kermit N. McManus, District Attorney, John S. Helton, Assistant District Attorney, for appellee.

Our review of the opinion and Frazier’s motion reveals no basis for reconsideration. Accordingly, his motion for reconsideration is hereby denied, as is his motion to supplement the record on appeal.

Motion for reconsideration denied.