author: Dillard, Judge.

text:
    A10A1278.
    NELSON et al. v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA et al.
    (704 SE2d 868)
   Dillard, Judge.

Plaintiffs James Gary Nelson (“Nelson”), Deborah Nelson, Jeany Pontrelli, and Michael J. Pontrelli filed a medical malpractice action, seeking damages related to the allegedly negligent treatment Nelson received as a patient at the Medical College of Georgia (“MCG”) hospital facility following his surgery to remove a brain tumor. Plaintiffs named as defendants, among others, MCG Health, Inc. (“MCGHI”); Michael Cowan, M.D.; Peter Brown, M.D.; Samuel Macomsen, M.D.; and Christopher Ewart, M.D.

MCGHI failed to file a timely answer to the complaint, and thereafter filed a motion to open default, which the trial court granted. MCGHI then filed a motion for summary judgment, disclaiming liability for plaintiffs’ claims. The trial court denied MCGHI’s motion, and certified its decision for immediate review. We granted MCGHI’s application for interlocutory appeal, and then affirmed the trial court’s summary-judgment ruling. After the remittitur was entered, MCGHI filed a second motion for summary judgment, incorporating an additional affidavit and evidence in support of same. Following a hearing, the trial court granted MCGHI’s second motion for summary judgment.

In further proceedings before the trial court, Defendants Cowan, Brown, Macomsen, and Ewart (“the Resident Defendants”) filed a motion to dismiss (claiming immunity from liability in the lawsuit), which was granted.

Plaintiffs filed the instant appeal, challenging the trial court’s order granting MCGHI’s motion to open default and second motion for summary judgment, as well as its decision granting the Resident Defendants’ motion to dismiss. For the reasons set forth infra, we affirm each of the trial court’s decisions.

1. Plaintiffs first contend that the trial court abused its discretion in granting MCGHI’s motion to open default. We disagree.

MCGHI was served with plaintiffs’ complaint on September 13, 2000, but failed to file a timely answer within 30 days or open the default as a matter of right within 15 days as permitted by OCGA § 9-11-55 (a). On November 2, 2000, MCGHI moved to open the default, paid costs, filed an answer setting forth meritorious defenses, and announced that it was ready to proceed with trial. MCGHI then supplemented its motion with the affidavits of its director of risk management and chief financial officer, which set forth the basis for its defenses and the reasons for its failure to file a timely answer.

The affidavits explained that MCGHI was not involved in the daily operations of the hospital at the time of Nelson’s treatment in September 1998, and that it did not take over the hospital’s operations from MCG until July 1, 2000. When the complaint was subsequently served on September 13, 2000, MCGHI was still transitioning into its operation of the hospital and had not yet implemented a new procedure for handling lawsuits. Prior to this transition, all lawsuits against the hospital were handled by the Georgia Department of Administrative Services (“DOAS”), and MCGHI’s employees mistakenly assumed that DOAS would also be handling this lawsuit (given that the alleged malpractice took place while the hospital was still under state control). Moreover, this was the first malpractice lawsuit filed against the hospital since MCGHI took over control of the facility’s operations, and MCGHI’s employees had no prior experience in handling and processing lawsuits. As a result, the employees failed to forward the complaint to the proper persons for handling. MCGHI discovered its error in failing to file a timely answer to the complaint on November 1, 2000, and took prompt remedial action to open the default on the following day.

Upon considering the averments set forth in MCGHI’s motion to open default, as well as the supporting affidavits, the trial court found that a “proper case” had been established for the default to be opened and granted the motion. In doing so, the trial court did not abuse its discretion.

OCGA § 9-11-55 (b) allows a prejudgment default to be opened on one of three grounds: providential cause, excusable neglect, or a proper case. As a condition precedent to the trial court’s consideration of whether any of the three grounds has been met, the defendant must show compliance with four statutory conditions by (1) making a showing under oath, (2) setting up a meritorious defense, (3) offering to plead instanter, and (4) announcing ready to proceed with the tried. And here, it is undisputed that MCGHI met the four preconditions for opening the default.

On appeal, plaintiffs limit their challenge to the trial court’s determination that MCGHI’s averments presented a proper case to allow the default to be opened, arguing that (1) MCGHI did not provide the trial court with a “reasonable explanation” for its failure to file a timely answer to their complaint, and (2) the trial court was required to apply the more rigorous “excusable neglect” analysis in considering whether to open the default on the basis that MCGHI mistakenly assumed DOAS would be handling the defense of the lawsuit.

In considering the plaintiffs’ argument, we begin by noting that

[t]he “proper case” ground[,] under which the default was opened in this case[,] has been construed to confer discretion on the trial court broader than that conferred on the other two grounds[,] as if reaching out to take in every conceivable case where injustice might result if the default were not opened.

Indeed, the sole function we have as an appellate court reviewing a trial court’s grant of a motion to open default is to ascertain whether all of the conditions delineated in OCGA § 9-11-55 have been satisfied, and if so, “whether the trial court abused its discretion based on the facts peculiar to each case.” And because the public policy of this state strongly favors resolution of cases on their merits, the remedial provisions for opening a default are to be forgivingly applied. For this reason, a default should generally be set aside “where the defendant acts with reasonable promptness and alleges a meritorious defense,” so as to avoid a “drastic sanction” that “should be invoked only in extreme situations.” In sum, once the four preconditions have been satisfied by a defendant, the trial court is vested with broad discretion in determining whether to open a default on the “proper case” ground, and we will not disturb a trial court’s decision on this matter absent an abuse of its discretion.

In the case sub judice, the record shows that, upon discovering the default, MCGHI acted promptly by filing a motion to open the default less than a week after the expiration of the time it could have done so as a matter of right (and one day after learning of the default), and plaintiffs have not demonstrated that they were prejudiced as a result of the default being opened or that the default delayed the litigation in any appreciable manner. Furthermore, MCGHI alleged a meritorious defense to plaintiffs’ claims in the lawsuit. Under the foregoing circumstances, we conclude that the trial court did not abuse its broad discretion in opening the default.

Contrary to plaintiffs’ assertion, it is not for this Court to determine whether, in the first instance, the proffered justification given by MCGHI to the trial court as a basis for opening a default on the proper case ground is “reasonable.” To do so undermines, to the point of eviscerating, the abuse of discretion standard of review we are charged with adhering to in these cases, and is wholly inconsistent with our long-established view that a trial court is to be given wide discretion in determining what is and is not a “proper case” for opening a default. Put another way, this Court can (and should) only evaluate the reasonableness of MCGHI’s proffered justification for opening a default on the “proper case” ground in the context of considering whether the trial court’s acceptance of this justification as a basis for opening the default amounts to a manifest abuse of discretion.

Finally, plaintiffs’ contention that our prior decision in Bell-South Telecommunications v. Future Communications required the trial court to apply the more rigorous “excusable neglect” analysis in considering whether to open the default is without merit. Specifically, plaintiffs appear to read our decision in BellSouth as requiring a trial court to apply, as a matter of law, an excusable-neglect analysis in each and every case where a defendant mistakenly assumes that a lawsuit is being handled by another person or entity. Plaintiffs’ understanding of our holding in BellSouth is erroneous.

While it is certainly true that some of the language employed in BellSouth is less than precise, it is likewise true, as MCGHI notes in its responsive brief, that there are several opinions of this Court upholding a trial court’s decision to open a default on the “proper case” ground in circumstances virtually identical to those presented in the case sub judice. Moreover, the precedential utility of this Court’s reasoning and holding in BellSouth is significantly constrained by the fact that the trial court in that case opened the default “without an explanation of the legal or factual basis for doing so,” which apparently precluded us from being able to identify a reasonable basis for the trial court’s decision to open the default. Finally, it is important for litigants to keep in mind that these “default cases” often turn on a variety of factors (e.g., the trial court’s discretionary judgment, factual subtleties), and that “no two are alike, and each must be judged on its own merits.” In any event, plaintiffs are wrong to read our decision in BellSouth as holding that the “proper case” ground for opening a default is subsumed into the “excusable neglect” ground in each and every case where a defendant mistakenly assumes that a lawsuit is being handled by another person or entity.

2. Plaintiffs further contend that the trial court violated “the law of the case” by granting MCGHI’s second motion for summary judgment after this Court’s decision in the first appeal, MCG Health 1, Once again, we disagree.

In filing its first motion for summary judgment, MCGHI argued that it did not operate the hospital, employ any of the persons involved in Nelson’s treatment, or exercise control over the actions of Nelson’s medical providers at the time of his treatment in September 1998. Although it is undisputed that MCGHI was not operating the hospital at the time the cause of action arose, Nelson, nevertheless, opposed MCGHI’s motion on the ground that it assumed liability for the claims against the hospital pursuant to several transfer agreements (pertaining to MCGHI’s acquisition of the hospital). And based upon the assumption-of-liability terms contained in those agreements, the trial court denied MCGHI’s motion for summary judgment and certified its decision for immediate review. We granted MCGHI’s application for interlocutory appeal, and then (in MCG Health I) affirmed the trial court’s summary-judgment ruling. In doing so, we noted MCGHI’s argument that it had not assumed liability for plaintiffs’ claims because the transfer

agreements specifically excluded pre-transfer liabilities covered by the programs of insurance and self-insurance maintained by DOAS, but found that contention unavailing because MCGHI had not pointed to any record evidence establishing the existence of such insurance coverage. Accordingly, based upon the evidence then presented, we affirmed the denial of MCGHI’s motion for summary judgment under this claim.

Following the entry of remittitur from MCG Health I, MCGHI filed a second motion for summary judgment that included a supplemental affidavit and evidence supporting its argument that plaintiffs’ claims fell within the excluded liabilities under the transfer agreements. In the supplemental affidavit, MCGHI’s vice president of legal affairs attested that he was familiar with the programs of liability insurance and self-insurance maintained by DOAS during the relevant time period of September 1998, and that these liability-insurance policies covered the Board of Regents, MCG, doctors, residents, and nurses named as defendants in the lawsuit. Moreover, attached to the affidavit were copies of the State Tort Claims Policy and Broad Form State Employee Liability Agreement that provided the pertinent coverage and conclusively established that the plaintiffs’ claims fell within the excluded liabilities that had not been assumed by MCGHI under the transfer agreements. Upon the submission and consideration of this additional evidence, the trial court granted MCGHI’s second motion for summary judgment.

On appeal, plaintiffs contend that our prior decision in MCG Health I, affirming the trial court’s denial of MCGHI’s first motion for summary judgment, established the law of the case, which they claim the trial court violated in its subsequent decision granting MCGHI’s second motion for summary judgment. Plaintiffs are mistaken.

The law of the case rule, codified by OCGA § 9-11-60 (h), provides that “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.” Under this provision, “[t]he ‘law of the case’ rule, though formally abolished, still applies to rulings by one of our appellate courts in a particular case[.]” Significantly, however, an exception exists where “the evidentiary posture of the case changes in the trial court after the appellate court decision,” so as to “bar application of the law of the case rule when the original evidence submitted is found to be insufficient, and the deficient evidence is later supplemented.”

Proper application of the law of the case rule, then, requires that an important procedural distinction be drawn between the granting and denial of a summary judgment. As we have previously explained:

Granting a summary judgment is a decision on the merits and ends the case; amendments and subsequent motions for summary judgment made after this decision on the merits are too late. Denial of a motion for summary judgment decides nothing except that under the evidence before the court at that time there can be rendered no judgment as a matter of law.

Accordingly, “the previous denial of summary judgment does not preclude a subsequent .granting thereof on the basis of an expanded record.”

And here, after remittitur, MCGHI changed the evidentiary posture of the case by submitting the additional affidavit and insurance policies that supported its disclaimer of liability under the transfer agreements. In turn, this submission expanded the record to supplement the evidentiary deficiency noted in MCG Health I, and demonstrated that the plaintiffs’ claims fell within the purview of the excluded liabilities MCGHI had not assumed under the transfer agreements. Contrary to plaintiffs’ claim, the trial court did not violate the law of the case rule by considering MCGHI’s supplemental evidence supporting its second motion for summary judgment and granting same.

3. Lastly, plaintiffs contend that the trial court erred in granting the Resident Defendants’ motion to dismiss on the ground of qualified immunity. Again, we disagree.

Except as provided in the Georgia Tort Claims Act (“GTCA”), “officers and employees of the state or its departments and agencies shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official functions.” The provisions of the GTCA further declare, as the public policy of this state, that “state officers and employees shall not be subject to lawsuit or liability arising from the performance or nonperformance of their official duties or functions.”

In the case sub judice, the Resident Defendants filed a motion to dismiss, claiming entitlement to qualified immunity under the aforementioned provisions, and providing uncontroverted affidavits and deposition testimony establishing that the treatment they provided to Nelson was in their capacities as resident physicians in the MCG program. The uncontroverted evidence further established that as residents (1) they had no hospital privileges and were only able to practice under institutional licenses granted to them pursuant to OCGA § 43-34-33, (2) the treatment they provided was controlled by and under the supervision of the attending physician, (3) they had no choice as to the patients that they treated or the physicians to whom they were assigned to during clinical rotations, (4) they had no private-pay relationship with Nelson, and (5) their pay was limited to a fixed stipend paid by MCG and the Board of Regents.

Given the foregoing, we conclude that the Resident Defendants’ qualified immunity claim is controlled by our decision in Bonner v. Peterson, in which we held that a resident physician at MCG was entitled to qualified immunity under the GTCA for the treatment he provided to the plaintiff patient. Indeed, the circumstances presented in Bonner are substantially similar to those involved in this case:

[T]he record show[ed] that resident physicians, unlike attending physicians, are subject to the control and direction of others. Specifically, resident physicians work under and are supervised by attending physicians. They have no hospital privileges and they are not empowered to make any unilateral decisions regarding the treatment of patients. Patients do not make appointments with resident physicians and residents have no control over which patients they see. Instead, resident physicians treat patients who are also being treated by an attending physician. Additionally, unlike attending physicians, resident physicians receive no compensation, either directly or indirectly, from any patient. Rather their only compensation is paid by MCG, and that compensation does not vary based upon either the number of patients seen or the number of procedures performed.

Based upon these factors and circumstances, we concluded that “state-employed resident physicians are entitled to immunity from liability arising from their treatment of patients during the course of their residency.”

Plaintiffs, nevertheless, contend that Bonner was erroneously decided, and cannot be reconciled with the Supreme Court of Georgia’s decision in Keenan v. Plouffe, which held that an attending physician and faculty member at MCG was not acting within the scope of his state employment—and thus not entitled to qualified immunity—when he performed surgery on a “private-pay” patient. Plaintiffs’ contention is without merit.

As fully explained in Bonner, the circumstances of a state-employed resident physician are easily distinguishable from those of an attending physician who has agreed to treat a patient under a private-pay arrangement. In light of the restrictions placed upon the Resident Defendants’ discretion in providing treatment under supervision and the restrictions of their institutional licenses, the circumstances surrounding their provision of treatment are clearly distinguishable from those of an attending physician whose medical treatment is not similarly restricted. Based upon the foregoing restrictions, as well as the evidence establishing that the Resident Defendants were acting within the scope of their duties as MCG residents when they assisted in Nelson’s treatment, we hold that they were clearly entitled to immunity under the GTCA.

Decided December 1, 2010

Steven L. Beard, Charles M. Cork III, for appellants.

Thurbert E. Baker, Attorney General, J. David Stubins, Assistant Attorney General, Hull & Barrett, James S. V. Weston, for appellees.

We likewise reject the plaintiffs’ argument that the Resident Defendants should not be granted immunity to the extent that they were covered by liability insurance. While it is true that Ga. Const, of 1983, Art. I, Sec. II, Par. IX previously waived sovereign immunity to the extent that liability insurance was provided, this provision was amended, effective January 1, 1991, to delete the insurance-waiver clause, and to instead provide that the extent of the state’s waiver of sovereign immunity was provided under the GTCA. Because plaintiffs’ action accrued after January 1, 1991, the insurance waiver of sovereign immunity does not apply.

In sum, the Resident Defendants were entitled to immunity under OCGA § 50-21-25 (a), and the trial court’s decision granting their motion to dismiss was proper.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.

        MCG Health, Inc. v. Nelson, 270 Ga. App. 409 (606 SE2d 576) (2004) (“MCG Health I”).

       On appeal, plaintiffs initially challenged the trial court’s decision to grant the Board of Regents’s renewed and amended motion to dismiss (which was based on plaintiffs’ failure to comply with the state’s statutory ante litem notice requirements), but abandoned this challenge in their reply brief. Plaintiffs’ remaining enumerations of error concern matters that are being considered by this Court, pursuant to OCGA § 5-6-34 (d), which provides that, where a proper appeal is taken, an appellate court may also review other orders rendered in the case below, which are raised on appeal and may affect the proceedings, regardless of whether the other orders were independently appealable. See, e.g., Roberts v. Windsor Credit Servs., 301 Ga. App. 393, 395 (1) (687 SE2d 647) (2009). Plaintiffs’ decision to abandon their challenge to the trial court’s order granting the Board of Regents’s motion to dismiss does not deprive this Court of jurisdiction to consider the remaining orders that fall within the ambit of OCGA § 5-6-34 (d). See, e.g., Murray v. DeKalb Farmers Mkt., 305 Ga. App. 523, 524 (699 SE2d 842) (2010) (“Even though none of the errors enumerated pertain to the directly appealable . . . dismissal [order] from which the appeal was taken, we have appellate jurisdiction pursuant to OCGA § 5-6-34 (d) to review other orders rendered in the case which may affect the proceedings and which are raised in the appeal.” (citation and punctuation omitted)); Roberts, 301 Ga. App. at 394-95 (1) (same).

       OCGA § 9-11-55 (b); see also Anderson v. Flake, 270 Ga. 141, 143 (2) (508 SE2d 650) (1998); Boggs Rural Life Ctr. v. IOS Capital, 255 Ga. App. 847, 847 (567 SE2d 94) (2002).

       OCGA § 9-11-55 (b); see also Anderson, 270 Ga. at 143 (2); Boggs Rural Life Ctr., 255 Ga. App. at 847.

       Plaintiffs’ reliance on In the Matter of Turk, 267 Ga. 30 (471 SE2d 842) (1996) is misplaced, given that the discretion exercised in opening a default in an attorney-disciplinary proceeding lies exclusively with the Supreme Court of Georgia. Id. at 31 (1) (“Under OCGA § 9-11-55 (b), the determination of whether a ‘proper case’ exists is a matter within the trial court’s discretion. Because of our inherent and exclusive power to regulate the practice of law, it is this Court that must exercise the ultimate discretion in disciplinary proceedings.” (emphasis supplied)).

        Legacy Hills Res. Ass’n. v. Colonial Bank, 255 Ga. App. 144, 145 (564 SE2d 550) (2002) (citation and punctuation omitted); see also ABA 241 Peachtree, LLC v. Brooken & McGlothen, LLC, 302 Ga. App. 208, 210 (690 SE2d 514) (2010) (same).

        ABA 241 Peachtree, 302 Ga. App. at 210 (punctuation omitted); see also Gilliam v. Love, 275 Ga. App. 687, 687 (621 SE2d 805) (2005) (same); Patterson v. Bristol Timber Co., 286 Ga. App. 423, 426-27 (2) (649 SE2d 795) (2007) (same).

        See, e.g., Exxon Corp. v. Thomason, 269 Ga. 761, 761-62 (1), (2) (504 SE2d 676) (1998); Johnson v. Am. Nat’l Red Cross, 253 Ga. App. 587, 589 (1) (569 SE2d 242) (2002); Ford v. St. Francis Hosp., 227 Ga. App. 823, 826 (1) (490 SE2d 415) (1997).

        Exxon Corp., 269 Ga. at 763 (2) (punctuation and footnote omitted).

        NorthPoint Group Holdings, LLC v. Morris, 300 Ga. App. 491, 493 (685 SE2d 436) (2009) (citation and punctuation omitted).

        See, e.g., Henderson v. Quadramed Corp., 260 Ga. App. 680, 680-81 (1) (580 SE2d 542) (2003); Majestic Homes v. Sierra Dev. Corp., 211 Ga. App. 223, 224 (1) (438 SE2d 686) (1993).

        See, e.g., Henderson, 260 Ga. App. at 681 (1); Majestic Homes, 211 Ga. App. at 224 (1).

        See, e.g., Vibratech, Inc. v. Frost, 291 Ga. App. 133, 145 (661 SE2d 185) (2008) (noting that “this Court has recognized a number of factors for determining whether opening default would be appropriate in a particular case, including,” but not limited to,
      whether and how the opposing party will be prejudiced by opening the default; whether the opposing party elected not to raise the default issue until after the time under OCGA § 9-11-55 (a) had expired for the defaulting party to open default as a matter of right; and whether the defaulting party acted promptly to open the default upon learning no answer had been either filed or timely filed,
      and “any additional delay occasioned by a failure to file promptly for opening default upon its discovery can be considered in determining whether defendants’ neglect was excusable.” (citation and punctuation omitted)); Ford, 227 Ga. App. at 826 (1) (same).

        See, e.g., Shortnacy v. N. Atlanta Internal Med., 252 Ga. App. 321, 324 (1) (556 SE2d 209) (2001) (noting that “the potential for manifest injustice exists in this case if default judgment is entered against the defaulting defendants because they have pled what appears to be a meritorious defense”); see also Vito v. Dhillon, 269 Ga. App. 899, 903 (2) (605 SE2d 602) (2004) (noting that opening default was appropriate when defendant met the requirements of OCGA § 9-11-55 (b), which includes alleging a meritorious defense); Whitley v. Bank S., 185 Ga. App. 896, 898 (2) (366 SE2d 182) (1988) (noting that opening default is appropriate when defendant “acts with reasonable promptness and alleges a meritorious defense” (citation and punctuation omitted)).

        See, e.g., Exxon Corp., 269 Ga. at 763 (2); Henderson, 260 Ga. App. at 682 (2); Johnson, 253 Ga. App. at 590-91 (1); Shortnacy, 252 Ga. App. at 323-24 (1).

        See, e.g., OCGA § 9-11-55 (b); Graham v. Atlanta Nat’l Bldg. & Loan Ass’n, 110 Ga. 278, 278 (2) (34 SE 847) (1899) (“It is within the discretion of the court... to allow a default to be opened . . . where, from all the facts, the court may determine that a proper case has been made for the default to be opened, on terms to be fixed by it.”); Houston v. Lowes of Savannah, 136 Ga. App. 781, 783 (1) (222 SE2d 209) (1975) (noting in open default cases that “[w]ith only a cold record before us, this [Clourt should not merely substitute its judgment for that of the trial judge”); see also Henderson, 260 Ga. App. at 681 (1); Majestic Homes, 211 Ga. App. at 224 (1).

        See Colonial Penn Life Ins. Co. v. Mkt. Planners Ins. Agency, 209 Ga. App. 562, 563 (434 SE2d 124) (1993) (“If the record sustains the decision to open default under any of the three grounds noted in the statute (providential cause, excusable neglect, and a proper case), this [C]ourt will affirm the trial court’s action.” (citation and punctuation omitted)); Thompson v. Kelsey, 8 Ga. App. 23, 23 (68 SE 518) (1910) (holding that the trial court’s discretion to open a default “should be given a liberal construction, in the promotion of justice and the establishment of the truth; and [a trial court’s decision] permitting the defendant to plead will not be interfered with by a reviewing court, unless manifestly abused, to the injury of the plaintiff”).

       293 Ga. App. 247 (666 SE2d 699) (2008).

        See, e.g., Ford, 227 Ga. App. at 825 (affirming trial court’s decision to open default on “proper case” ground where “affidavit of the hospital’s risk management officer showed it was his duty to forward the complaint to counsel and the hospital’s insurer . . . [that] he received the complaint. . . but did not know exactly why it was not answered,” and that it was possible “he had overlooked the complaint . . . believ[ing] the hospital’s standard procedure would result in an answer being filed in this case, as in the others which preceded it”); Johnson, 253 Ga. App. at 590 (affirming trial court’s decision to open default on “proper case” ground where “affidavit shows that the complaint was served on the Medical Director . . . ; that the Risk Management Division did not receive the complaint. . . ; that there was a misunderstanding in the office of the General Counsel which led the Red Cross to [mistakenly] believe that the complaint was being handled properly; and that immediately upon receiving the complaint, the Risk Management Division forwarded it to the third-party administrator . . ., who sent it to outside counsel”). Compare NorthPoint Group Holdings, LLC, 300 Ga. App. at 493 (affirming trial court’s refusal to open default on “proper case” ground where defendants provided no reasonable explanation for the default, merely stated that “it is unclear what happened,” and did not dispute that they were properly served or that the cases fell into default).

       293 Ga. App. at 248.

        Butterworth v. Safelite Glass Corp., 287 Ga. App. 848, 851 n.16 (652 SE2d 877) (2007) (describing the holding of Follmer v. Perry, 229 Ga. App. 257, 259 (1) (493 SE2d 631) (1997)).

       The arguments presented in plaintiffs’ appellate brief are limited to addressing the procedural validity of the trial court’s decision under the law of the case rule. Because plaintiffs’ arguments do not address the substantive merits of the trial court’s decision granting MCGHI’s second motion for summary judgment, those claims are deemed to be abandoned. Court of Appeals Rule 25 (c) (2) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”).

        MCG Health I, 270 Ga. App. at 409-12 (l)-(3).

        Id. at 412 (2).

        Id.

        Id.

        IH Riverdale, LLC v. McChesney Capital Partners, 292 Ga. App. 841, 843 (666 SE2d 8) (2008) (punctuation and footnote omitted).

        Id. (punctuation and footnotes omitted); see also Brown v. Piggly Wiggly S., 228 Ga. App. 629, 629 (1) (493 SE2d 196) (1997) (same); MOM Corp. v. Chattahoochee Bank, 203 Ga. App. 847, 847 (1) (418 SE2d 74) (1992) (“[F]ollowing appellate review of summary judgment, ‘the law of the case’ rule does not limit or prohibit the trial court from receiving new evidence which changes the evidentiary posture of the case.” (citations and punctuation omitted)).

        Ellington v. Tolar Constr. Co., 142 Ga. App. 218, 221 (1) (235 SE2d 729) (1977) (emphasis supplied).

        Id. (citation omitted).

       Plaintiffs’ citations to Black v. Floyd, 280 Ga. 525, 526-27 (1) (630 SE2d 382) (2006), McDaniel v. City of Griffin, 281 Ga. App. 350, 352-53 (1) (636 SE2d 62) (2006), and Lowman v. Advanced Drainage Sys., 228 Ga. App. 182, 183-85 (491 SE2d 427) (1997) are unavailing, as these decisions merely stand for the proposition that a party may not present a new defense or relitigate a claim following the entry of summary judgment or a final judgment in the opposing party’s favor. Because the procedural posture in those cases involved the grant of summary judgment or the entry of a final judgment in favor of a party, they are distinguishable and are inapplicable to the instant case involving the expansion of the record following the denial of summary judgment. See, e.g., MOM Corp., 203 Ga. App. at 847-48 (1); Ellington, 142 Ga. App. at 219-221 (1).

        See, e.g., MOM Corp., 203 Ga. App. at 847-48 (1); Lee v. Dep’t of Transp., 198 Ga. App. 716, 716-17 (402 SE2d 551) (1991); Ellington, 142 Ga. App. at 219-21 (1).

       The trial court also granted the Resident Defendants’ motion to dismiss based upon immunity provided to voluntary health care providers, OCGA § 51-1-29.1 (a), and to medical students, OCGA § 51-1-38 (a). But in light of our decision upholding the dismissal on the ground of qualified immunity under the GTCA, we need not reach the merits of these alternative grounds. We, nevertheless, note that because resident physicians already have medical degrees, and are at least provisionally licensed to practice medicine, they are not extended immunity under the provisions of OCGA § 51-1-38 (a). See, e.g., Bonner v. Peterson, 301 Ga. App. 443, 448-49 (2) (a) (687 SE2d 676) (2009).

       OCGA § 50-21-20 et seq.

       Ga. Const, of 1983, Art. I, Sec. II, Par. IX (d).

       OCGA § 50-21-21 (b); see also OCGA § 50-21-25 (a).

       Under OCGA § 43-34-33 (a) (1998), a graduate of an accredited and approved medical school, who was employed by an approved state medical college, could be granted an institutional license authorizing such physician to practice medicine under proper medical supervision.

       301 Ga. App. 443 (687 SE2d 676) (2009).

        Id. at 449-52 (2) (b).

        Id. at 451 (2) (b).

        Id. at 451-52 (2) (b).

       267 Ga. 791, 793-94 (2) (482 SE2d 253) (1997).

        See generally 301 Ga. App. at 451-52 (2) (b).

       Indeed, because the Resident Defendants were providing treatment under institutional licenses, they were forbidden from engaging in the type of private arrangement that existed in Keenan. The provisions of OCGA § 43-34-33 (c) (1998) mandated that “[a] person issued an institutional license .. . shall not engage in the private practice of medicine and shall not receive fees or other remuneration from his patients. Persons practicing medicine pursuant to an institutional license . . . shall receive as their sole remuneration for the practice of medicine the salary and other remuneration paid by the institution.”

        See OCGA § 50-21-25 (a); Bonner, 301 Ga. App. at 451-52 (2) (b).

        See, e.g., Curtis v. Bd. of Regents of Univ. Sys. of Ga., 262 Ga. 226, 227 (416 SE2d 510) (1992).

        Id.

        See, e.g., id. at 227-228.

        See, e.g., Bonner, 301 Ga. App. at 449-52 (2) (b).


source: Caselaw Access Project

author: Blackwell, Judge. BARNES, Presiding Judge,

license: Public Domain

text:
    A10A1361.
    FERGUSON v. THE STATE.
    (704 SE2d 470)
   Blackwell, Judge.

Derrick Ferguson was tried by a jury and was convicted of several crimes, including two counts of theft by taking a motor vehicle in violation of OCGA § 16-8-2. Ferguson appeals from his conviction and the denial of his motion for new trial, contending that (1) the evidence adduced at trial is insufficient to sustain his conviction on one count of theft by taking a motor vehicle and (2) his trial counsel failed to object to the admission of certain “bad character” evidence and, therefore, was ineffective. We disagree and affirm.

Viewed in the light most favorable to the verdict, the record shows that, on November 24, 2006, Ferguson was living at a residential facility in Dalton operated by Providence Ministries. Early that afternoon, a woman parked her Toyota Camry in the front of the thrift store that Providence Ministries operated at the same location and went into the store to shop, leaving her car unlocked and the keys in the car. When she later exited the store, she discovered that her car had been stolen.

The premises of Providence Ministries were monitored by a video surveillance system, and police officers reviewed video recordings made at or around the time of the theft as a part of their investigation. These recordings, which were admitted at trial, show a man — wearing khaki pants, a light shirt, and a dark jacket — walking by the parked Camry several times and, on at least one occasion, looking into it. The same recordings show a man — wearing khaki pants, a light shirt, and a dark object wrapped about his head — enter the vehicle a few minutes later and drive away. Late on the afternoon of November 24, a police officer spoke with Ferguson, who was wearing khaki pants, a light shirt, and a blue jacket. Ferguson admitted to the officer that he was the man depicted in the recordings walking near the Camry, but he denied stealing the car. Ferguson was not arrested at that time.

Later that night, police officers responded to a report of suspicious activity at a used car lot in Dalton. As one officer approached and entered the lot to investigate, he observed someone enter and start a Honda Accord parked on the lot. Although the officer twice identified himself as a police officer and commanded the driver of the car to stop, the driver drove off the lot, striking two vehicles and a fence in the process.

Another responding officer joined the pursuit of the Accord and followed it to a parking lot, where the officer saw a man exit the car with a bag and run toward a nearby fence. Shortly thereafter, the officer discovered Ferguson, wearing khaki pants and a dark jacket and lying on the ground in a nearby, fenced-in area, which was only a few blocks from Providence Ministries. Officers also located a bag, which contained items that belonged to Ferguson, near the stolen Accord. Ferguson was arrested and charged with the theft of both vehicles and related crimes.

A jury convicted Ferguson of the theft of both cars, as well as fleeing to elude a police officer in violation of OCGA § 40-6-395 (a), second-degree criminal damage to property in violation of OCGA § 16-7-23 (a) (1), obstruction of a law enforcement officer in violation of OCGA § 16-10-24 (a), and leaving the scene of an accident in violation of OCGA § 40-6-270 (c) (1). Ferguson then filed a motion for a new trial, which was denied. This appeal followed.

1. Ferguson claims that the evidence adduced at trial is insufficient to prove beyond a reasonable doubt that he is the person that stole the Camry. We disagree. When we consider whether the evidence is sufficient to sustain a conviction, we ask whether any rational jury could find, in the evidence adduced at trial, proof of guilt beyond a reasonable doubt, viewing the evidence in the light most favorable to the verdict. See Cutrer v. State, 287 Ga. 272, 274 (695 SE2d 597) (2010); see also Wilson v. State, 304 Ga. App. 743, 745 (1) (698 SE2d 6) (2010). As we have said before, “[i]t is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence.” Wilson, supra, 304 Ga. App. at 745 (1). So, if the record contains some competent evidence to prove each element of the crime of which the defendant was convicted, even though that evidence may be contradicted, we must uphold the conviction. Cooper v. State, 299 Ga. App. 199, 200 (682 SE2d 154) (2009). Here, the evidence is sufficient to permit a rational jury to conclude beyond a reasonable doubt that Ferguson stole the Camry.

Although Ferguson argues otherwise, this is not a case in which the evidence merely shows that Ferguson was present at the place from which the Camry was stolen. The theft of the Camry was recorded by video surveillance cameras, and the jury was shown a recording of the theft, which depicts the thief walking across a parking lot with his face concealed, approaching the Camry, entering the Camry, and only seconds later, driving it away. The jury also saw video surveillance recordings taken in the same vicinity a few minutes before the Camry was stolen, which show Ferguson — who admitted to a police officer that he was the person depicted in these recordings — walking about the facility from which the Camry was stolen and walking past the Camry more than once. The jury, therefore, was afforded the opportunity to consider how the thief was dressed, his complexion, his size and build, his gait and posture, and other characteristics of his appearance and compare them with nearly contemporaneous recordings of Ferguson.

Identity is a question of fact for the jury to decide. Brown v. State, 277 Ga. App. 169, 170 (1) (626 SE2d 128) (2006). We have said before that “it is not beyond the ken of the average juror to decide as a matter of fact whether the identity of a person in a video is the defendant.” Carter v. State, 266 Ga. App. 691, 693 (2) (598 SE2d 76) (2004); see also Moses v. State, 252 Ga. App. 23, 24 (555 SE2d 246) (2001) (“[T]he jury had access to the videotapes of the transactions, viewed them twice, and could determine the identity of the persons shown therein.”). And in a case in which a robbery of a convenience store was recorded by a surveillance camera, we held that the evidence of identity was sufficient because the jury had the opportunity to examine surveillance camera photographs of the robber and compare them with the defendant as he appeared at trial. See Brown, supra, 277 Ga. App. at 171 (1). In this case, the jury not only had the opportunity to compare a video recording of the car thief with Ferguson as he appeared at trial, it also had the opportunity to compare the thief with Ferguson as he appeared on the date of the theft and as recorded by the same video surveillance system. By comparing the two, a rational jury could conclude beyond a reasonable doubt that Ferguson was the person who stole the Camry.

Moreover, other aspects of the evidence support the jury’s identification of Ferguson as the thief. Given the way in which the thief, as depicted in the video recordings, confidently entered the Camry and almost immediately drove away, the jury properly could infer that the thief knew that the keys were in the car. The video recordings of Ferguson show him look toward the car as he walked past its passenger door only minutes before it was stolen, from which the jury might properly infer that Ferguson had the opportunity to see that the keys were in the car.

The jury also was presented with evidence that Ferguson stole the Accord only hours after the Camry was stolen, and Ferguson does not contend that the evidence is insufficient to prove that he stole the Accord. Both crimes occurred in the same city and on the same date, and both involved the theft of foreign-made, mid-size sedans. The State presented evidence from which the jury could infer that, like the Camry, the keys had been left in the Accord at the time it was stolen, and the keys from both cars were missing when the cars were recovered. Given these similarities, evidence of either theft would be admissible as a similar transaction at the trial of the other to show bent of mind, intent, and course of conduct. See Mattox v. State, 287 Ga. App. 280, 283 (1) (651 SE2d 192) (2007) (where defendant was charged with entering and attempting to steal a pickup truck and sport-utility vehicle, trial court properly admitted evidence of a similar transaction involving the theft of a pickup truck using similar methods, where the crimes charged and the similar transaction occurred “during the same month [and] in the northern metropolitan Atlanta area”). Accordingly, the evidence that Ferguson stole the Accord supports his conviction for stealing the Camry.

Finally, Ferguson testified at trial. Although he denied that he stole either of the two cars, the jury was entitled to weigh his testimony against the other evidence in the case, assess his credibility, and determine whether his testimony was truthful. And if the jury concluded that his testimony was not truthful, as we must assume it did, the jury was entitled to take his untruthfulness as substantive and affirmative evidence of his guilt. See Wright v. West, 505 U. S. 277, 296 (II) (112 SC 2482, 120 LE2d 225) (1992) (“As the trier of fact, the jury was entitled to disbelieve West’s uncorroborated and confused testimony. . . . And if the jury did disbelieve West, it was further entitled to consider whatever it concluded to be pexjured testimony as affirmative evidence of guilt. . . .”); see also United States v. Jiminez, 564 F3d 1280, 1285 (II) (11th Cir. 2009) (same).

“A proper inference the jury can make from disbelieved testimony is that the opposite of the testimony is true.” United States v. Hasner, 340 F3d 1261, 1272 (II) (D) (1) (11th Cir. 2003). As Lord Chief Justice Cockburn put it, quoted with approval by our own Supreme Court:

The conduct of a party to a cause may be of the highest importance in determining whether the cause of action in which he is a plaintiff, or the ground of defence, if he is defendant, is honest and just; just as it is evidence against a prisoner that he had said one thing at one time and another at another, as shewing that the recourse to falsehood leads fairly to an inference of guilt. Anything from which such an inference can be drawn is cogent and important evidence with a view to the issue. So, if you can show that a plaintiff has been suborning false testimony, and has endeavored to have recourse to perjury, it is strong evidence that he knew perfectly well his cause was an unrighteous one. I do not say that it is conclusive; I fully agree that it should be put to the jury, with the intimation that it does not always follow, because a man, not sure he shall be able to succeed by righteous means, has recourse to means of a different character, that that which he desires, namely, the gaining of the victory, is not his due, or that he has not good ground for believing that justice entitles him to it. It does not necessarily follow that he has not a good cause of action, any more than a prisoner’s making a false statement to increase his appearance of innocence is necessarily a proof of his guilt; but it is always evidence which ought to be submitted to the consideration of the tribunal which has to judge of the facts.

(Emphasis supplied.) Ga. R. &c. Co. v. Lybrend, 99 Ga. 421, 435 (27 SE 794) (1896) (quoting Moriarity v. London &c. R. Co., 5 QB 319). Because we must view the evidence in the light most favorable to the State, we must assume that the jury concluded that Ferguson was untruthful when he denied stealing the Camry, and we must allow that the jury could infer from the untruthfulness of his testimony that Ferguson did, in fact, steal the Camry.

Viewed in its entirety, we find that the evidence was sufficient to permit a rational jury to conclude beyond a reasonable doubt that Ferguson stole the Camry.

2. We also find no merit in Ferguson’s claim that he was deprived at trial of the effective assistance of counsel because his lawyer failed to object to the admission of evidence that reflected upon Ferguson’s character. The standard by which we assess a claim of ineffective assistance of counsel is well settled:

To prevail on a claim of ineffective assistance of trial counsel, a defendant bears the burden of showing both that trial counsel was deficient and that he was prejudiced by the deficiency. To demonstrate deficient representation, a convicted criminal defendant must show that counsel’s representation fell below an objective standard of reasonableness. Such a defendant must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct and that counsel’s decisions were made in the exercise of reasonable professional judgment. The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the circumstances of the case.

(Citation and punctuation omitted.) Smith v. State, 302 Ga. App. 128, 133 (2) (690 SE2d 449) (2010). When we consider a claim of ineffective assistance, we defer to findings of fact by the trial court unless clearly erroneous, but we review the trial court’s application of the law to those facts de novo. Farris v. State, 293 Ga. App. 674, 675 (667 SE2d 676) (2008).

At trial, the bag that police officers recovered near the stolen Accord was admitted as evidence. As proof that this bag belonged to Ferguson, a letter found inside the bag — which is addressed to Ferguson at Dooley State Prison — also was admitted, and Ferguson’s lawyer did not object to the admission of the letter. Because the letter indicates that Ferguson had been in prison at one time, Ferguson says that it is inadmissible “bad character” evidence and that his lawyer should have objected. We disagree.

As we have said before, “[ejvidence which is relevant to an issue in a case is not rendered inadmissible by the fact that it incidentally puts the defendant’s character in issue.” Biggins v. State, 229 Ga. App. 297, 299 (1) (494 SE2d 45) (1997). Here, the letter admitted at trial was relevant and admissible to prove identity, inasmuch as the letter tends to prove that the bag found near the stolen Accord belonged to Ferguson, and this fact tends to prove that Ferguson was, in fact, the man who stole the Accord. See Smith, supra, 302 Ga. App. at 133 (1) (c) (mugshots admissible to show clothing worn by defendant at the time of his arrest); McNeil v. State, 257 Ga. App. 147, 148 (570 SE2d 433) (2002) (inmate identification documents admissible to prove that defendant gave a false name to police); Biggins, supra, 229 Ga. App. at 299 (1) (inmate identification card admissible in forgery case as “relevant to the identity of the perpetrator and to the credibility of the witnesses”); Wilson v. State, 222 Ga. App. 818, 819 (476 SE2d 97) (1996) (inmate identification card admissible to show ownership of nearby contraband). Because the letter addressed to Ferguson was relevant and admissible, an objection to its admission would have been futile, and Ferguson’s lawyer was not ineffective for failing to object. See Henderson v. State, 300 Ga. App. 478, 482 (3) (685 SE2d 454) (2009); see also Bagwell v. State, 270 Ga. 175, 178 (1) (c) (508 SE2d 385) (1998) (failure to object to otherwise relevant evidence not ineffective); Williams v. State, 290 Ga. App. 841, 845 (4) (b) (660 SE2d 740) (2008) (“Trial counsel cannot be deemed ineffective for failure to make a futile or meritless objection.”).

For these reasons, we affirm the judgment of the trial court.

Judgment affirmed.

Andrews, P. J., Smith, P. J., Mikell, Adams and Dillard, JJ., concur. Barnes, P. J., concurs in part and dissents in part.

BARNES, Presiding Judge,

concurring in part and dissenting in part.

I concur fully with Division 2 of the majority opinion. However, because I believe that the evidence was insufficient to sustain Ferguson’s conviction for the theft of the Camry, I must respectfully dissent to Division 1.

Mere presence of one where a crime is committed, without more, will not support a conviction. Sweat v. State, 119 Ga. App. 646 (168 SE2d 654) (1969). So too, unexplained and suspicious circumstances are not sufficient to convict the defendant. Rodgers v. State, 213 Ga. 797, 803 (102 SE2d 10) (1958); Donaldson v. State, 222 Ga. App. 532, 533 (474 SE2d 722) (1996) (“[S]peculation and conjecture will not sustain a conviction.”) (citation and punctuation omitted).

In cases such as this where all of the evidence is circumstantial, the proper standard is whether the evidence is consistent with the hypothesis of guilt and excludes every other reasonable hypothesis save Ferguson’s guilt. “[T]he evidence need not exclude every inference or hypothesis except guilt of the accused, but only reasonable inferences . . . , beyond reasonable doubt, of guilt.” (Citations and punctuation omitted.) Fitz v. State, 201 Ga. App. 83, 85 (410 SE2d 186) (1991).

The theft of the Camry was based solely on evidence that Ferguson was seen in the area where the theft of the Camry occurred; evidence that Ferguson conceded was true. Moreover, the fact that he was staying at Providence Ministries, the residential facility affiliated with the thrift store, substantiated his legitimate presence in the area. The video surveillance tape merely reflected that Ferguson was in the area as well.

The surveillance tape entered into evidence at trial showed ten clips of varying lengths between the times of 12:43 p.m., when the Camry was parked in front of the thrift store and 1:26 p.m., when the vehicle was stolen. The clips showed a man in khaki pants wearing a light shirt that at times appeared to be light blue. The man holds a white bag in some of the clips, papers in others, and in some of the clips he appears to have a dark object over his shoulder that may either be a jacket or a bag. In at least two of the clips the man is not carrying anything. There are time lapses from seconds to over 15 minutes in the clips. The surveillance tape does not show what happened during these stretches of time.

Decided December 1, 2010.

Michael A. Corbin, for appellant.

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

Likewise, there is no indication of whether other people walked by the Camry during this 45-minute time period because only the clips of Ferguson were extracted from the surveillance tape to compare with the theft suspect. While it is certainly true as the majority notes, that jurors determine questions of fact such as identity, it is beyond the ken of the most astute jury to compare Ferguson as he appeared at trial with the video of a man with a dark object wrapped around his head and declare that they are one and the same. In the cases cited by the majority for this proposition, Carter v. State, supra, and Moses v. State, supra, the defendant was identified from an image on a videotape, not his gait, complexion or clothing.

The only other evidence of Ferguson’s identity was the theft of the Honda, and “[generally in a criminal trial, proof that the defendant committed a distinct, independent, and separate offense is highly and inherently prejudicial.” (Citation and punctuation omitted.) Johnson v. State, 275 Ga. 508, 510-511 (3) (570 SE2d 292) (2002).

While it is true that the appellate courts do not undertake to weigh evidence, we must, however, look to see if there is sufficient competent evidence to support the verdict. Pierce v. State, 243 Ga. 454 (1) (254 SE2d 838) (1979).

Thus, as I believe the evidence was not sufficient to support Ferguson’s conviction for the theft of the Camry, I must respectfully dissent from the majority opinion as to Division 1.

       On an appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the verdict. Aguilera v. State, 293 Ga. App. 523, 523 (667 SE2d 378) (2008).

       An employee of Providence Ministries testified at trial that she saw Ferguson in the parking lot adjacent to the thrift store around the time of the theft.

       Although it is not our place to weigh this evidence as if we were the trier of fact, we note that the video recordings show both Ferguson and the thief dressed in similar clothing. Moreover, Ferguson is depicted wearing a dark-colored jacket and later carrying a dark-colored object (that could be, for instance, the same jacket), and the thief is depicted wearing a dark-colored object (that could be, again, the same jacket) wrapped about his head. In addition, based on the video recordings, a rational jury could conclude easily that both Ferguson and the thief are of a similar size, similar build, and similar complexion. According to the testimony of one witness at trial, Ferguson did not look like any other person residing at Providence Ministries at the time the Camry was stolen.

       Although a different result is not warranted in this case, it is important to reiterate the inherently prejudicial nature of the letter addressed to Ferguson at Dooley State Prison as it raises “an inference that an accused who acted in a certain manner on one occasion is likely to have acted in the same or in a similar manner on another occasion and thereby putting the accused’s character in issue.” Bryant v. State, 204 Ga. App. 856, 861 (3) (420 SE2d 801) (1992). In this circumstance, given that the letter was relevant only to prove Ferguson’s identity, the prison’s address should have been redacted from the letter.


author: Adams, Judge.

text:
    A10A1372.
    VFH CAPTIVE INSURANCE COMPANY v. PLEITEZ.
    (704 SE2d 476)
   Adams, Judge.

This appeal presents a question of first impression concerning the interplay between the Georgia Captive Insurance Company Act (“CICA”), OCGA § 33-4-1 et seq., and OCGA § 33-7-11, the uninsured motorist statute.

The underlying facts of this case, which are undisputed, show the following: plaintiff/appellee Rigoberto Pleitez was a taxi cab driver. On May 25, 2007, his cab had a flat tire while he was driving on 1-85. Pleitez pulled over into the gore area to change the tire, where he was struck by a vehicle driven by defendant Mynor Perez-Barrios, who is not a party to this appeal; Pleitez received extensive injuries as a result of this accident.

Pleitez brought suit against Perez-Barrios, and Perez-Barrios’s liability carrier paid out its policy limits to Pleitez. Pleitez served a copy of the suit on his insurer, appellant VFH Captive Insurance Company, pursuant to the uninsured/underinsured motorist statute, OCGA § 33-7-11. VFH answered and denied that the policy it issued to Pleitez provided uninsured/underinsured motorist coverage, and both parties subsequently moved for summary judgment on the coverage issue. Pleitez argued that the coverage was part of the policy by operation of law because VFH had failed to offer uninsured coverage or to obtain a written rejection of coverage from him. OCGA § 33-7-11 (a) (3). VFH argued it was prohibited from offering uninsured motorist coverage by the CICA. The trial court denied VFH’s motion for summary judgment and granted summary judgment to Pleitez, finding that Pleitez was entitled to uninsured motorist coverage under his policy with VFH. VFH appeals.

VFH is a captive insurance company, insuring only vehicles for hire. See OCGA § 33-41-2. The types of insurance a captive insurer may offer are set forth in OCGA § 33-41-3 and include casualty insurance, specifically motor vehicle liability insurance as described in OCGA § 33-7-3. The Act requires that “[insurance policies . . . issued by a captive insurance company for . . . motor vehicle accident insurance shall be in conformity with all minimum requirements for coverages and coverage amounts established by the state for such types of insurance.” OCGA § 33-41-3 (b). The statute also specifies the types of risks that a captive insurance company “may not” insure, including risks resulting from “[a]ny personal, familial, or household responsibilities,” OCGA § 33-41-3 (c) (1) (A), as well as risks which do not result from responsibilities arising out of the business. OCGA § 33-41-3 (c) (1) (B). Lastly, OCGA § 33-41-24 provides that “La|ny provisions of this [Insurance] title which are inconsistent with the provisions of this chapter shall not apply to captive insurance companies.”

OCGA § 33-7-11 (a) (1), the uninsured/underinsured motorist statute, provides in pertinent part that

[n]o automobile liability policy or motor vehicle liability policy shall be issued or delivered in this state to the owner of such vehicle or shall be issued or delivered by any insurer licensed in this state . . . unless it contains an endorsement or provisions undertaking to pay the insured damages for bodily injury, . . . sustained from the owner or operator of an uninsured motor vehicle. . . .

(Emphasis supplied.) And subsection (a) (3) further provides that the coverage outlined in (a) (1) is required unless the named insured rejects the coverage in writing. Thus, it is undisputed that uninsured motorist coverage is a minimum requirement in a Georgia motor vehicle liability policy.

Despite the plain language of the uninsured motorist statute, VFH argues that a captive insurance company may not offer uninsured or underinsured motorist coverage because extending that coverage would require it to insure risks which it may not insure under the CICA (i.e., risks other than those associated with the business of the insured), and to extend that coverage to members of the insured’s household. See OCGA § 33-7-11 (b) (1) (B) (broadly defining an “insured” to include members of insured’s household, spouse, permissive users of the vehicle and others). Thus, VFH argues, the statutes are in conflict and, pursuant to OCGA § 33-41-24, the provisions of the uninsured motorist statute do not apply to captive motor vehicle liability policies and it may not offer or provide uninsured motorist coverage to its insureds. We reject this contention.

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).

We begin our analysis by noting that there is nothing in the CICA that explicitly prohibits a captive insurer from offering uninsured motorist coverage. Thus the Act does not directly conflict with the requirement contained in OCGA § 33-7-11 that motor vehicle liability policies must include uninsured motorist coverage unless the insured has rejected that coverage in writing. On the other hand, the mandate contained in section 33-41-3 (b) of the CICA is explicit: “[insurance policies . . . issued by a captive insurance company for . . . motor vehicle accident insurance shall be in conformity with all minimum requirements for coverages and coverage amounts established by the state for such types of insurance.” (Emphasis supplied.) Uninsured motorist coverage, unless rejected in writing, is such a minimum requirement under Georgia law, and the General Assembly is presumed to have acted with full knowledge of that requirement in enacting the provisions of the CICA. Retention Alternatives v. Hayward, 285 Ga. 437 (678 SE2d 877) (2009) (in interpreting a statute, we must presume that the General Assembly had full knowledge of the existing state of the law and enacted the statute with reference to it). If the legislature had not intended for captive insurance companies to be subject to the minimum requirement of uninsured motorist coverage, it could have expressly provided for such an exclusion.

Moreover, although an insurer generally cannot carve out exclusions when extending uninsured motorist coverage, see Wagner v. Nationwide &c. Ins. Co., 288 Ga. App. 132 (653 SE2d 526) (2007), this Court recently recognized that other controlling statutory mandates and strictures may result in the insurer providing some uninsured motorist coverage without being subject to other provisions of the uninsured motorist statute. See Ga. Interlocal Risk Mgmt. Agency v. Godfrey, 305 Ga. App. 130 (699 SE2d 377) (2010) (although GIRMA policy provided uninsured motorist coverage up to the statutorily defined limits, it did not have to provide underinsured coverage or allow a covered individual the option of selecting the amount of such coverage). Thus, to the extent the uninsured motorist provisions are inconsistent with the CICA, those provisions would not apply to captive insurance companies as set forth in OCGA § 33-41-24.

Decided December 1, 2010.

Michael J. Lober, for appellant.

Taylor & Viers, Richard T. Taylor, for appellee.

In any event, the accident in this case involved the named insured taxi driver, and it is undisputed that he was engaged in responsibilities arising out of his job as a taxi cab driver, not personal or family responsibilities, at the time he was injured. Thus, under the facts here, the captive insurer is not required to insure a risk that it is prohibited from insuring under the CICA.

Lastly, we note this opinion is consistent with precedent from our Supreme Court. In a somewhat analogous situation involving very similar facts, that Court held that uninsured motorist coverage will be implied in a self-insurance plan that failed to include such coverage, unless the self-insurer has filed a plan with the insurance commissioner declining to include uninsured motorist coverage in the self-insurance plan. Twyman v. Robinson, 255 Ga. 711 (342 SE2d 313) (1986). Although there are differences between the CICA and the provisions governing self-insurers, see OCGA § 33-34-5.1, we discern no differences in the overriding policy considerations at issue.

As noted at the outset, it is undisputed in this case that the policy VFH issued to Pleitez did not expressly include uninsured motorist coverage and that VFH did not obtain a written rejection of that coverage from Pleitez. Based on the foregoing, we find that the trial court did not err by finding that Pleitez was entitled to uninsured motorist coverage under his policy with VFH and thus that he was entitled to summary judgment.

Judgment affirmed.

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

       Association captive insurance companies such as VFH insure only members of an association of persons (individuals, corporations, partnerships or other associations) who are engaged “in similar or related professional, trade, or business activities. . . .” OCGA § 33-41-2 (2).

       It is difficult for us to envision that the General Assembly would not intend for a group such as taxi cab drivers, who are presumably at a greater risk of an accident than the average motorist, to be offered the same uninsured motorist protection as other drivers. However, it would be useful for the legislature to clarify the extent of uninsured motorist coverage captive insurers are required to extend because it is apparent that they cannot provide the full coverage contemplated by the uninsured motorist statute.

       At the time the opinion was issued, the self-insurance plan was filed with the Commissioner of Public Safety. See Proctor v. Rapid Group, 203 Ga. App. 232, 233, n. 1 (416 SE2d 774) (1992), and cites.

       The Court did not explain the rationale for allowing a self-insurer to decline to provide uninsured motorist coverage “despite the language in OCGA § 33-7-11 requiring such coverage ‘except where the insured rejects’ it[.]” Proctor, 203 Ga. App. at 234 (2).


author: Ellington, Judge.

text:
    A10A1452.
    KESTERSON et al. v. JARRETT et al.
    (704 SE2d 878)
   Ellington, Judge.

Catherine and Ross Kesterson, individually, and their minor daughter, Kyla, by and through her parents, appeal from a jury verdict and final judgment in favor of the defendants in this medical malpractice case. Following a bifurcated trial on the issue of liability, the jury returned a verdict in favor of Walter Jarrett, M.D., Athens Obstetrics and Gynecology, EC., and St. Mary’s Healthcare System, Inc. d/b/a St. Mary’s Hospital. On appeal, the Kestersons contend the State Court of Clarke County erred in granting the defendants’ request to limit Kyla’s presence in the courtroom during the liability phase of the trial, in limiting their cross-examination of Jarrett, and in excluding video evidence offered to illustrate Kyla’s injuries. For the reasons that follow, we find no reversible error and affirm the jury’s verdict.

Viewed in the light most favorable to the jury’s verdict, the record shows the following facts relevant to this appeal. At about 6:15 a.m. on October 20, 1998, Catherine Kesterson (“Kesterson”) was admitted to St. Mary’s Hospital so that her obstetrician, Jarrett, could induce labor. Jarrett administered Pitocin, a medication used to stimulate uterine contractions. The hospital nursing staff connected Kesterson to a fetal heart rate monitor, an external device which generated printed information documenting any changes in the fetus’ heart rate. The nurses monitored Kesterson’s labor until she delivered Kyla at 8:15 p.m. Jarrett examined Kesterson at 2:30 p.m., 4:00 p.m., and 5:45 p.m. During the last examination, Jarrett noted that Kesterson was in active labor, but that her cervix was not sufficiently dilated to deliver. Jarrett ordered an epidural for Kester-son and then went to a meeting, leaving his patient in the care of his partner, Dr. Van Herrin.

The day nurse, who was present until 7:00 p.m., did not observe anything about Kesterson’s labor, including any changes in the fetus’ heart rate, that caused her concern. Although she noted “variable decelerations” of the fetus’ heart rate, those were either associated with Kesterson’s contractions or related to the fact that she was sitting up for an epidural, and the nurse did not consider them to be unusual. When the evening nurse came on duty at 7:00 p.m., she reviewed the fetal heart rate monitor and noted: “Fetal heart rate with minimal variability; occasional variable decel, some late occurring; patient turned to full right lateral position.” Nothing she observed caused her to be concerned. Around 7:34 p.m., the evening nurse observed that the heart rate monitor had registered a more significant deceleration of the fetus’ heart rate and that it was not returning to normal as quickly as it had before, suggesting a deceleration unrelated to contractions. After giving Kesterson oxygen, the nurse paged Herrin and relayed her observations. Herrin responded within minutes, examined Kesterson, and ordered an emergency Caesarean section. Shortly thereafter, he delivered Kyla.

Kyla was born with very low “Apgar scores,” a gross assessment of the infant’s medical condition at specific intervals after birth. Within a day of her delivery, Kyla had a brain ultrasound and CT scan, neither of which revealed any injury. A week later, an MRI of Kyla’s brain revealed damage to parts of the brain that control motor function. Kyla was eventually diagnosed with spastic quadriplegia, a form of cerebral palsy. As a result of this condition, Kyla is unable to control her movements and is confined to a special wheelchair, she has a feeding tube inserted into her stomach, her airway must be suctioned several times a day, she has bladder and bowel dysfunction, she suffers frequent seizures, she has severely limited cognitive function, and she cannot speak.

The Kestersons contended at trial that Kyla’s neurological injuries occurred when she was deprived of oxygen just prior to birth. They argued that the nurses and Jarrett were negligent in failing to timely recognize the signs of fetal distress and that if Jarrett had performed a Caesarean section earlier, Kyla would not have been injured. The defendants argued that their actions did not fall below the standard of care, that an earlier Caesarian section was not medically indicated, and that Kyla’s cerebral palsy may have resulted from something other than an event that occurred during delivery.

1. The Kestersons contend that the trial court “erred in granting [the] defendant’s motion to ban Kyla from the courtroom during the trial.” Under the unique circumstances of this case and for the following reasons, we hold that the trial court’s carefully considered decision to limit Kyla’s presence in the courtroom during the liability phase of the trial did not constitute reversible error.

(a) Relevant Facts. Following a hearing, the trial court entered an order granting the defendants’ request to bifurcate the trial, separating the issues of liability and damages. The court held that “any testimony related to monetary damages is irrelevant to the liability portion of the trial.” The court held that all evidence of damages, including pain and suffering, “shall be reserved until such time as Plaintiff has established malpractice by one or more of the Defendant[s].” The Kestersons do not contend that the court erred in bifurcating the trial.

After the court ordered the trial bifurcated, the defendants moved to exclude Kyla from the liability phase of the trial. The defendants attached as exhibits to the motion the detailed medical assessments of Kyla by two doctors. Both doctors described Kyla’s severe injuries, profoundly limited cognitive function, and the daily medical care and equipment required to keep her alive. On the issue of her cognitive functioning, one doctor noted that Kyla’s “[s]peech and language exam was notable for crying, but no response to sounds, voices, and no oral utterance except for cries. I do not believe the child is [able to respond to yes or no questions with an] eyeblink.”

The court conducted an evidentiary hearing on the motion, during which the Kesterson’s counsel made the following statements: “[W]e never envisioned that [we would] bring Kyla Kesterson to this courtroom and leave her in the courtroom during .. . the entire trial. . . . We would never subject her to that.” “Kyla is represented in this action by her parents.” “[W]e should not be limited from . . . introducing her to the jury even during the liability phase of the trial. ... It will be very, very short, and then . . . she will probably be out of here for the rest of [the liability] phase.”

[W]e have no intention of bringing Kyla Kesterson in. Number one, it wouldn’t be right to do it. We can’t do it for long, long periods of time. . . . But there may be some limited appearances that we may have of her, and we have a right, we believe, to use a picture and a video of her during the liability phase.

Following the hearing, the court entered a written order finding as follows:

[Kyla Kesterson] currently has severe and permanent neurological disabilities and brain damage, is immobile and in a wheelchair, suffers frequent seizures, has a feeding tube, requires suctioning of her airway several times a day, suffers from bladder and bowel dysfunction, and is unable to communicate other than by a few gestures, crying and making loud noises.

The court also noted that “Plaintiffs responded that [Kyla] will not be brought into the courtroom for any lengthy period of time.” After restating the parties’ positions on the question of whether Kyla’s presence in the courtroom during the liability phase of the trial was unduly prejudicial, and after finding that Kyla’s interests were protected by her parents, who would be present in the courtroom, the court concluded:

The Court shall allow Plaintiff Kyla Kesterson in the courtroom at the time of the call of the case for trial immediately prior to voir dire of the jury panel. After introduction of [Kyla] to the jury panel, the child’s presence during the liability phase of the trial shall not be allowed until the Court, outside of the jury’s presence, determines that the presence of such child is essential and relevant to witness testimony related to medical conditions affecting said child which resulted from alleged negligent acts by one or more Defendants.... However, the Court reserves the right to remove [Kyla] from the courtroom at any time the Court perceives that her actions are distracting or disruptive to the proceedings or otherwise result in potential prejudice to one or more of the defendants.

The record reflects that the Kestersons brought Kyla into the courtroom briefly during voir dire before voluntarily removing her. Thereafter, pursuant to the court’s rulings, the Kestersons made three requests to bring Kyla into the courtroom. They asked that Kyla be present during the testimony of a physician who treated Kyla in the month following her birth but who had not since examined her. The court denied the request, finding that Kyla’s presence was not “necessary with respect to giving any opinions that he [could] give” concerning his past treatment. The Kestersons also asked that Kyla be present during Catherine Kesterson’s testimony to illustrate to the jury Kyla’s physical injuries and disabilities and to establish the nature of her medical condition and whether the defendants caused Kyla’s condition. The defendants responded that Kyla’s condition and its cause were “medical, technical” issues. After weighing the prejudice to the defendants (noting that Kyla’s presence had an emotional impact on some of the jurors during voir dire) and concluding that Kyla’s mother could not give any medical testimony concerning Kyla’s condition, the court denied the request. Upon the Kestersons’ third request, the trial court agreed to allow Kyla in the courtroom during the cross-examination of a defense expert, so that the doctor could observe Kyla and respond to questions about whether Kyla had facial features consistent with the type of injury alleged by the Kestersons.

(b) Applicable Law. “Generally, parties[] to civil actions in this State have the right to be present at all stages of the trial.” (Citation omitted.) Cox v. Yates, 96 Ga. App. 466 (3) (100 SE2d 649) (1957). Nevertheless, this right is not absolute, as the Supreme Court of Georgia has permitted trial judges, in the exercise of their discretion, to exclude parties from civil trials under certain circumstances. See Willingham v. Willingham, 192 Ga. 405, 408 (2) (15 SE2d 514) (1941) (affirming exclusion of parties from courtroom during examination of their children in a divorce trial, where parties’ attorneys were present and able to cross-examine the children and where the welfare of the children was a principal issue before the court). A number of other courts have also concluded that a civil litigant’s right to be present is not absolute. Although we have found no Georgia case law expounding upon the constitutional or statutory source of a civil party’s qualified right to be present during trial, we agree with the analysis of the United States Court of Appeals for the Sixth Circuit, which held that a civil litigant’s right to be present at trial is protected by the constitutional right of due process of law. Helminski v. Ayerst Laboratories, 766 F2d 208, 213 (III) (6th Cir. 1985), cert. denied, 474 U. S. 981 (106 SC 386, 88 LE2d 339) (1985). The Helminski court reasoned:

[S]ince an attorney is merely the representative or agent of the litigant and not the litigant’s “alter ego,” a court may not exclude arbitrarily a party who desires to be present merely because he is represented by counsel; such exclusion would violate the due process clause of the Fifth Amendment.

(Citations omitted.) Id.

Because no Georgia appellate court has yet to fully articulate those circumstances under which a trial court may exclude a severely injured party from civil proceedings without offending due process of law, we turn for guidance to the decisions of other state and federal appellate courts. After carefully reviewing these decisions, we find persuasive the reasoning employed by the Helminski court. See, e.g., Green v. North Arundel Hosp. Assn., 785 A2d 361, 375 (Md. App. 2001); Hines v. Wilkinson, 163 FRD 262, 265-268 (III), (IV) (S.D. Ohio 1995); Province v. Center for Women’s Health &c., 25 Cal. Rptr. 2d 667, 675 (Cal. Ct. App. 1993) (noting that Helminski “surveyed, considered and discussed the rules which had been applied to a broad range of cases” dealing with the exclusion of parties from trial).

The Helminski court set forth a two-step inquiry to determine whether a severely injured party’s exclusion from trial comports with due process.

[First,] the defendant who seeks to exclude a handicapped plaintiff must establish at a hearing that the plaintiffs presence would prevent or substantially impair the jury’s performance of its fact-finding task. The requisite showing of prejudice cannot be satisfied simply by establishing that a plaintiff has a physical or mental injury; the party seeking exclusion must establish that the party’s appearance or conduct is likely to prevent the jury from performing its duty. . . .
[Second, sjhould the [trial] court determine that the party’s mere presence would be prejudicial, the court must next consider whether the party can understand the proceedings and aid counsel. If the trial court concludes that the party can comprehend the proceedings and assist counsel in any meaningful way, the party cannot be involuntarily excluded regardless of prejudicial impact; in such a case, cautionary instructions will protect the interests of the defendant in a fair trial.

766 F2d at 218. However, if the trial court concludes that the plaintiffs presence would prejudice the jury and the plaintiff would be unable to assist counsel or comprehend the proceedings, then the trial judge should bifurcate the case into separate trials on liability and damages, and then limit the plaintiffs presence only during the liability phase. See id. at 217.

Applying this analysis to the case before us, we hold that a trial court has the discretion to limit a severely injured plaintiffs presence during the liability phase of a bifurcated trial when, after an evidentiary hearing upon a written motion and after an opportunity to observe the plaintiff, the court makes the following factual findings in a written order: (1) the plaintiff is severely injured; (2) the plaintiff attribute's those injuries to the conduct of the defendants); (3) there is a substantial likelihood that the plaintiffs presence in the courtroom will cause the jury to be biased toward the plaintiff based on sympathy rather than the evidence such that the jury would be prevented or substantially impaired from performing its duty; (4) the plaintiff is unable to communicate with counsel or to participate in the trial in any meaningful way; and (5) the plaintiff is unable to comprehend the proceedings. When all of those circumstances exist, the plaintiffs presence is not truly an exercise of his or her right to be present, because the plaintiff is incapable of making such a conscious choice. As in this case, the plaintiff functions almost as an exhibit, as a piece of evidence.

In this case, the court made all of the requisite factual findings except one. It did not make an explicit finding in its order or elsewhere on the record that there is a substantial likelihood that Kyla’s presence in the courtroom would cause the jury to be biased toward her based on sympathy rather than the evidence. Rather, the trial court, relying on the Kestersons’ assertions that they intended to bring Kyla in on only a few occasions during the liability phase of the trial, made the prejudice determination only when the Kester-sons asked to have their daughter present. It appears that, at each request, the court weighed the prejudice to the defendants against the probative value of Kyla’s presence. Only once during those three occasions, however, did the court actually articulate its findings. In that instance, the court noted the jury’s emotional reaction to Kyla. This one comment, though, under the analysis we have set forth, would be insufficient as a factual finding that the jury would be prevented or substantially impaired from performing its duty. See Helminski v. Ayerst Laboratories, 766 F2d at 218 (III).

Nevertheless, under the unique facts of this case, we conclude that the error was harmless. First, the trial court had no legal precedent from a Georgia appellate court instructing it to make that finding and to reduce it to writing. Second, the record contains facts which would have supported a finding that Kyla’s severe injuries would have caused the jury to be biased toward the plaintiff based on sympathy rather than the evidence such that the jury would be prevented or substantially impaired from performing its duty. Third, the court expressly found that Kyla neither could have understood the proceedings nor assisted in the trial of her case and that her interests were adequately represented by counsel and her parents. And finally, the jury in this case viewed Kyla on at least two occasions and was fully apprised of her medical condition and the extent of her injuries through medical testimony and other evidence. Therefore, there was no danger that the jury would be unable to appreciate the nature and severity of Kyla’s injuries. Helminski v. Ayerst Laboratories, 766 F2d at 218-219 (III). In all future cases, however, trial courts shall make these express findings in a written order prior to limiting a severely injured plaintiff from attending trial, and the failure to do so shall be reversible error. A party’s right to be present during trial is a cherished right, one which must be diligently safeguarded.

2. The Kestersons contend that the trial court erred in prohibiting them from cross-examining Jarrett “as to what he would have done if he had been told of the fetus’ worsening condition.”

The Kestersons attempted to ask Jarrett the following question: Had the labor and delivery nurses informed him at 6:47 p.m. of the first indications of a slowing fetal heart rate, “would [he] have come and assessed the patient?” The trial court sustained an objection to the question on the ground that it “call[ed] for speculation.” Although the Kestersons elaborated on why they thought the question was proper, they did not include in their proffer what Jarrett’s answer to the question would have been. Before this ruling, however, Jarrett had already testified on direct examination that, had he known about the 6:47 p.m. fetal heart rate reading, he would have done nothing differently: “[I]f you look at the chart, if you look at the fetal tracing, especially, and you follow it as it’s coming out of the machine, I wouldn’t have done anything differently had I been there[.]”

“We will not reverse a decision of the trial judge concerning whether to allow a hypothetical question unless there is an abuse of discretion.” (Citation omitted.) Cornelius v. Macon-Bibb County Hosp. Auth., 243 Ga. App. 480, 483 (1) (a) (533 SE2d 420) (2000). Pretermitting whether the trial court abused its discretion in sustaining the defendants’ objection to the question posed, the Kester-sons were not harmed as a result thereof because Jarrett had already answered the question posed on direct examination, and the excluded testimony would have been cumulative. See id. at 483-484 (1) (a) (“Generally, when there is cumulative evidence of the excluded testimony!,] the error may be harmless.”); Thomas v. Statewide Beverage Equip., 152 Ga. App. 293, 295 (4) (262 SE2d 575) (1979) (Since the excluded testimony “was merely cumulative evidence, its exclusion could not have prejudiced [the] appellants’ case.”) (citation omitted).

3. The Kestersons contend that the trial court erred in excluding a DVD containing video clips and photographs of Kyla which showed her injuries and medical condition.

During the liability phase of the trial, Catherine Kesterson gave testimony concerning her labor and delivery and Kyla’s injuries. Prior to offering her testimony, the Kestersons asked for permission to play for the jury during Catherine Kesterson’s testimony a DVD recording depicting a typical day in Kyla’s life. After the defendants objected to the recording, the court viewed it, heard argument concerning it, and excluded it on the ground that the evidence on the DVD related to damages, not liability, and that it was unduly prejudicial in that it played upon the jury’s sympathies.

[Generally we do not overrule a trial court’s decision in evidentiary matters unless we find that the trial court abused its discretion. And in making that determination, we weigh the evidence’s probative value against the risk that the jury might be misled or unfair prejudice or confusion might result.

(Citation omitted.) Tucker Nursing Center v. Mosby, 303 Ga. App. 80, 86 (4) (692 SE2d 727) (2010).

While the DVD recording had some probative value in illustrating the nature and extent of Kyla’s injuries, it was primarily evidence on the issue of damages and, thus, was properly excluded from the liability phase of the trial. The recording depicted, most significantly, the effort and cost associated with maintaining Kyla’s day-to-day existence and the emotional bond between mother and child. Because the record supports a finding that the probative value of the recording on the issues of liability and causation was slight and was substantially outweighed by the risk of prejudicing the jury with the emotional nature of the scenes depicted, the trial court did not abuse its discretion in excluding it. See Tucker Nursing Center v. Mosby, 303 Ga. App. at 86-87 (4).

Decided December 1, 2010

Parks, Chesin & Walbert, David F. Walbert, Charles A. Mathis, Jr., for appellants.

Forrester & Brim, Waymon H. Forrester, Carlock, Copeland & Stair, Thomas S. Carlock, Eric J. Frisch, Begnaud & Marshall, Andrew H. Marshall, for appellees.

Judgment affirmed.

Doyle, J., concurs. Andrews, P. J., concurs in judgment only.

       A reviewing court must view the evidence in the light most favorable to upholding the jury’s verdict. Stubbs v. Harmon, 226 Ga. App. 631, 632 (1) (a) (487 SE2d 91) (1997).

       Although Kyla, as a minor, “is required to appear through a guardian or next friend, [she] is the real party in interest.” Clements v. Phillips, 235 Ga. App. 588, 589 (1) (510 SE2d 311) (1998). See OCGA § 9-11-17 (c) (“Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may bring or defend an action on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative, he may bring an action by his next friend or by a guardian ad litem.”).

       See Onaka v. Onaka, 146 P3d 89, 96 (III) (B) (Haw. 2006) (“Although it is generally acknowledged that civil litigants have a . . . right to be present [at every stage of trial], it is equally clear that the right is not absolute.”) (footnotes omitted); Brown v. Yettaw, 116 SW3d 733, 735 (Mo. App. 2003) (“Whether a trial court has abused its discretion in proceeding to trial and judgment in the absence of a party or his attorney must be determined upon the particular facts and circumstances in the case under consideration.”) (citations and punctuation omitted); Green v. North Arundel Hosp. Assn., 785 A2d 361, 375 (Md. App. 2001) (“[T]here is a right of presence, [but] the right is not absolute!.]”); In re Robert U, 724 NYS2d 527, 529 (N.Y. App. 2001) (“It is now well settled that a litigant does not have an absolute right to be present at all stages of a civil proceeding!.]”) (citations omitted); Nussbaum v. Steinberg, 162 Misc.2d 524, 618 NYS2d 168, 169 (1994) (“The defendant’s right to be present at a civil trial is not absolute!.]”); In the Matter of Donna K., 518 NYS2d 289, 290 (N.Y. App. 1987) (“While every litigant has a fundamental right, guaranteed by the Due Process Clauses of both the Federal and State Constitutions, to be present at every stage of the trial, . . . this right is not absolute in civil actions.”) (citations omitted); Air Products &c. v. Johnson, 442 A2d 1114,1128 (Pa. Super. 1982) (“While we recognize that the right of a litigant to be present at the time his case is heard is a cherished right, we also are aware that the right is not absolute.”) (citations omitted); Casson v. Horton, 174 A2d 581, 582 (Md. App. 1961) (holding that a civil litigant “had no absolute right to be present”) (citation omitted).

       The Georgia Constitution provides: “No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.” Ga. Const, of 1983, Art. I, Sec. I, Par. XII. In the civil law context, that paragraph has been held to express a right of choice between self-representation and representation by an attorney, and not an “access to the courts” provision. Crane v. Lazaro, 281 Ga. App. 127, 127-128 (1) (635 SE2d 319) (2006). This paragraph, however, is often cited for the proposition that a criminal defendant has a constitutional right to be present at every stage of the proceedings materially affecting his case. See, e.g., Wilson v. State, 274 Ga. 637, 639 (3) (555 SE2d 725) (2001). The right to a trial by jury, Ga. Const., Art. I, Sec. I, Par. XI, does not contain language expressing a “right of presence” at trial.

       The Fifth Amendment to the United States Constitution provides, in relevant part, that no person shall “be deprived of life, liberty, or property, without due process of law[.]” The Georgia Constitution similarly provides that “[n]o person shall be deprived of life, liberty, or property except by due process of law.” Ga. Const, of 1983, Art. I, Sec. I, Par. I.

       A court’s observation should consist of viewing the plaintiff in person, in a video recording, or through other reliable means, such as through photographs or detailed medical records. Whatever the method of observation, it should be sufficient to provide the court with objective information from which to evaluate items (1) through (5) above.

       The DVD contained seven segments, each depicting a different care-taking activity performed by Kyla’s mother: (1) waking Kyla and carrying her from her bed to the sofa, (2) administering Kyla’s breathing treatments, (3) feeding Kyla through a tube, (4) putting Kyla into a wheelchair and attaching braces to her arms and legs, (5) placing Kyla into a “stander,” (6) exercising Kyla by moving and massaging her arms and legs, and (7) taking Kyla into the shower on a gurney, bathing her, and then putting her into a diaper. The video clips show the wide array of medical devices needed to maintain Kyla’s health and the extensive care provided by Kyla’s mother. During each video segment, Kyla’s mother affectionately touches Kyla, evoking what appear to be smiles from the child. The trial court observed: “If there is anyone in this room who could look at those video clips and not have an emotional response, in my opinion, they don’t have a heart rate.”