author: Boggs, Judge. BARNES, Presiding Judge,

text:
    A14A0086.
    DeMOTT v. OLD TOWN TROLLEY TOURS OF SAVANNAH, INC.
    (760 SE2d 703)
   Boggs, Judge.

Malissa DeMott filed a breach of contract action against Old Town Trolley Tours of Savannah, Inc. (“Old Town”) contending that Old Town, as a common carrier, is liable for injuries she sustained when she fell in its parking lot. Old Town moved for summary judgment on the claim, the trial court granted the motion, and DeMott now appeals. For the following reasons, we affirm.

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

(Citation and punctuation omitted.) Hood v. Todd, 287 Ga. 164, 165 (695 SE2d 31) (2010); see OCGA § 9-11-56 (c).

So viewed, the evidence showed that on November 17, 2008, DeMott, her husband, mother-in-law, and a family friend arrived at the Savannah Visitor Center parking lot for the purpose of taking Old Town’s trolley tour of the City of Savannah. DeMott entered the visitor center, purchased tickets for the trolley tour, and then walked across the parking lot to a kiosk to inquire about where to board the trolley. DeMott was told that she should board the trolley at the front door of the visitor center where she had just purchased the tickets. Because she had to walk back across the parking lot, DeMott’s husband warned her to “watch the pot holes [sic].” En route back to the visitor center, DeMott tried to step around a pothole, but the asphalt under her foot gave way, and she fell.

On March 16, 2010, DeMott filed a premises liability action against the City of Savannah, but later determined that the parking lot where she fell was owned by Old Town. On November 16, 2011, three years following her injury, DeMott amended her complaint to allege a premises liability claim against Old Town. When Old Town moved for summary judgment on DeMott’s claim because the two-year statute of limitation had expired, see OCGA § 9-3-33, DeMott, on July 10, 2012, again amended her complaint in order to allege a breach of contract claim against Old Town as a common carrier. She alleged that Old Town, as a common carrier, owed her an extraordinary duty of care, and that because Old Town allowed its parking lot to remain in a hazardous condition, it “was negligent and/or breached its contract” with her.

On July 12,2012, the trial court entered a consent order granting summary judgment to Old Town on DeMott’s premises liability claim, but also ordering that her “claims arising from a breach of contract remain viable and pending before the Court.” Old Town then moved for summary judgment on DeMott’s breach of contract claim arguing that it was in essence a claim for personal injury that was barred by the two-year statute of limitation. The trial court granted Old Town’s motion for summary judgment, ruling that DeMott “was not injured due to any breach of any contractual duty to safely carry or transport her. Her action is a premises liability tort claim for personal injury based upon the condition of the parking lot.”

In four enumerations, DeMott argues that the trial court erred in granting Old Town summary judgment on her breach of contract claim. She contends that the trial court did not apply the proper standard for a common carrier, and that it improperly relied upon two cases. We hold that the trial court’s grant of summary judgment to Old Town was proper.

“Georgia has long recognized that a ticket holder has a right of action for the breach of a contract of carriage.” Crites v. Delta Airlines, 177 Ga. App. 723, 725 (3) (341 SE2d 264) (1986). DeMott’s breach of contract claim is premised upon OCGA § 46-9-132, which provides that “[a] carrier of passengers must exercise extraordinary diligence to protect the lives and persons of his passengers but is not liable for injuries to them after having used such diligence.” And “[t]he rule of extraordinary diligence applies only to the receiving, keeping, carrying and discharging of passengers.” (Citation and punctuation omitted; emphasis supplied.) Delta Air Lines v. Millirons, 87 Ga. App. 334, 341 (5) (73 SE2d 598) (1952). “This duty continues until the passenger has been conducted to a place where he has some freedom of locomotion and can in a measure look out for his own safety,” (emphasis in original) id. at 342 (5), and is “coextensive with the relationship of passenger and carrier.” Id. at 341 (5); see also Cuthbert v. MARTA, 190 Ga. App. 550, 551 (1) (379 SE2d 413) (1989).

We have held that “[tjhe relationship of carrier and passenger exists until the passenger’s destination has been reached and the passenger has either alighted from the means of conveyance in safety or has been afforded reasonable time and opportunity to do so.” Millirons, supra, 87 Ga. App. at 341 (5). And with regard to when the carrier-passenger relationship commences, as explained in Mill-irons, it begins when the carrier is receiving the passenger. See id. In the circumstance of a railroad passenger, for example, this Court held that “it can not be doubted that when a person is on the steps or platform of the car which is open for the reception of passengers, in the act of entering for the purpose of becoming a passenger, this relation exists.” Ga. R. and Electric Co. v. Cole, 1 Ga. App. 33, 34 (57 SE 1026) (1907).

When DeMott fell, she was not aboard the trolley, and was not in the act of boarding or exiting the trolley, i.e., she was not being received, kept, carried, or discharged by Old Town. As DeMott states in the opening of her brief, she was en route to the location where she was to board the trolley and was still traversing the parking lot when she fell. Under these circumstances, no carrier-passenger relationship existed for OCGA § 46-9-132 to apply. Compare Southeastern Stages v. Stringer, 263 Ga. 641 (437 SE2d 315) (1993) (plaintiff passenger was killed by another passenger while on board bus); Sutton v. Southern R. Co., 101 Ga. 776 (29 SE 53) (1897) (plaintiff boarded train but was later forcibly removed from train by conductor); Crites, supra, 177 Ga. App. at 725 (3) (plaintiff passenger was removed from plane, harassed, and detained); Cole, supra (plaintiff was injured while on the steps of front platform entering trolley car). DeMott’s breach of contract claim therefore fails.

It is undisputed that DeMott fell on Old Town’s premises.
The carrier’s duty of exercising ordinary care to furnish safe station facilities for those to be received or for those who have been discharged as passengers is not to be confused with the carrier’s duty to use extraordinary care in receiving, transporting, and discharging its passengers.

Millirons, supra, 87 Ga. App. at 341 (5). The duty of ordinary care

is the obligation of any owner or occupier of land to one coming upon the premises by express or implied invitation. This duty of the carrier to exercise ordinary care in keeping its premises safe exists not only with respect to those persons being received or who have been discharged as passengers, but also with respect to any member of the public entering such premises for the purposes of doing business with the carrier, including even persons coming to meet arriving passengers.

Id.; see also Central of Ga. R. Co. v. Brown, 141 Ga. 553, 555 (81 SE 857) (1914) (“A railroad company is bound to use ordinary care in providing stational facilities for receiving and discharging passengers.”); Watts v. Colonial Stages Co., 45 Ga. App. 115, 119 (163 SE 523) (1932) (defendant bound to exercise only ordinary care and not extraordinary care where passenger was injured after he exited bus, entered a building, and fell on concrete).

Thus, any liability on the part of Old Town “does not arise out of a breach of the contract of transportation,... but is predicated upon a violation of the duty of one occupying and in control of land to exercise ordinary care in keeping the premises and approaches thereto in a safe condition for invitees thereon.” Millirons, supra, 87 Ga. App. at 343 (5). Such a duty is that which arises in any premises liability action. As the trial court properly concluded in the consent order, however, DeMott’s premises liability claim for her injury is barred by the two-year statute of limitation. See OCGA § 9-3-33 (two-year statute of limitation for personal injury actions).

Because DeMott cannot sustain a breach of contract claim under OCGA § 46-9-132, and as the trial court previously ruled, her premises liability claim is barred by the statute of limitation, the court did not err in granting Old Town’s motion for summary judgment.

Judgment affirmed.

Doyle, R J., Dillard and Branch, JJ., concur. Barnes, P. J., Ellington, P. J., and Miller, J., dissent.

BARNES, Presiding Judge,

dissenting.

Because a contract of carriage existed between DeMott and Old Town Trolley, and a question of fact remains as to whether the common carrier’s extraordinary duty of care applied when DeMott fell on her way to board the trolley, the trial court erred in concluding that the applicable statute of limitation had expired. Thus, I respectfully dissent from the majority opinion.

DeMott filed this action against Old Town Trolley more than two years but less than four years after she fell. The trial court found that DeMott’s claim was actually one for personal injury that was barred by the two-year statute of limitation in OCGA § 9-3-33. Quoting Daniel v. American Optical Corp., 251 Ga. 166, 168 (1) (304 SE2d 383) (1983), the trial court held that “the scope of application of this statute of limitations is determined by the nature of the injury sustained rather than the legal theory underlying the claim for relief.” The court concluded that DeMott’s injury did not arise out of any breach of Old Town’s contractual duty to safely transport her but was a premises liability claim for personal injury based on the condition of the parking lot.

Under OCGA § 46-9-132, “[a] carrier of passengers must exercise extraordinary diligence to protect the lives and persons of his passengers but is not liable for injuries to them after having used such diligence.” “Georgia has long recognized that a ticket holder has a right of action for the breach of a contract of carriage.” Crites v. Delta Air Lines, 111 Ga. App. 723, 725 (3) (341 SE2d 264) (1986). In fact,

[when] a person makes a contract [to be transported to another location] with a common carrier, and he is injured by the negligence of the carrier, he has two remedies, one an action for the breach of contract, the other an action on the case for the wrong, and he may elect which remedy he will pursue. If he elects to bring an action for the breach of contract, he has, under the code, four years within which to bring it; if he elects to sue upon the tort, he has two years.

Patterson v. Augusta & Savannah R. Co., 94 Ga. 140, 141 (21 SE 283) (1894); OCGA § 9-3-26. Accord Aiken v. Southern R. Co., 118 Ga. 118, 120 (44 SE 828) (1903); Sutton v. Southern R. Co., 101 Ga. 776, 778 (29 SE 53) (1897).

Old Town does not dispute that DeMott purchased a ticket for a trolley tour. DeMott’s ticket, while not a contract itself, “is evidence of the right to transportation furnished to the passenger in consequence of a contract to carry, and is intended to enable the passenger to secure transportation, under the rules and regulations of the carrier in performance of such contract.” Aiken, 118 Ga. at 120. Here, the parties do not dispute that a contract of carriage existed between DeMott and Old Town Trolley. The majority concludes that Old Town’s duty of extraordinary care did not yet apply to DeMott because she was simply crossing the parking lot, rather than actually boarding the trolley. But the record is unclear as to where DeMott fell in relation to where she was supposed to board the trolley, and this lurking question of fact should be decided by a jury.

A common carrier’s duty of extraordinary care clearly applies while the passenger is boarding or exiting the conveyance and during the trip itself. The difficulty arises in determining the carrier’s duty during the time period after the passenger buys a ticket and before she boards the conveyance, or after the passenger exits the conveyance. We have held that the carrier’s extraordinary duty ends when a passenger is “safely discharged,” and that a jury question existed as to whether the duty continued and was exercised by a bus driver who ran over a passenger who had just exited the bus. Cuthbert v. MARTA, 190 Ga. App. 550, 551 (1) (379 SE2d 413) (1989).

As to when the duty begins, our Supreme Court has held that a ticketed passenger waiting at the point of departure is, “as to all duties of the company towards [her] directly involving [her] safety, entitled to extraordinary diligence, and as to all duties involving merely [her] convenience or accommodation, to ordinary diligence.” Central R. and Banking Co. v. Perry, 58 Ga. 461, 467 (1877) (carrier owed only ordinary diligence to passenger who failed to board at the station and was injured while chasing the train down the tracks). Further, the carrier must exercise extraordinary diligence when “receiving” passengers, as in the case of a plaintiff who had purchased a railroad ticket and was “going forward at the proper place and time to board the defendant’s east-bound train” when he was struck by another train. Seaboard Air-Line R. Co. v. Brewton, 23 Ga. App. 621, 622 (99 SE 226) (1919), reversed on other grounds, Seaboard Air-Line R. Co. v. Brewton, 150 Ga. 37 (102 SE 439) (1920). See also Robertson v. MARTA, 199 Ga. App. 681, 682 (405 SE2d 745) (1991) (common carrier has duty to exercise extraordinary diligence to protect fare-paying passengers in its station).

Here, the record establishes that an Old Town employee directed DeMott to some area “over by the front door” where she was supposed to board the trolley, but the only evidence regarding the property’s physical layout is a sketch DeMott made during her deposition, which defense counsel noted was obviously not drawn to scale. That sketch does not indicate where DeMott was supposed to board. The photographs in evidence show only large potholes in asphalt with no clues regarding their relationship to anything else. When defense counsel asked Mr. DeMott, “So you just don’t remember as we sit here today . . . where the hole was in terms of the relationship to the Visitors Center?” he responded, “I can say it was out in front of the — this is the — I could say this is where the bus, the tour buses would come, and somewhere in there, there were pot holes.”

Construing the evidence in DeMott’s favor, as we must, whether the trolley company’s extraordinary duty to DeMott had begun before she fell is a question of fact for a jury rather than a question of law for the court.

The duty of extraordinary diligence for the safety of passengers, which rests upon a carrier in behalf of a passenger who has purchased a ticket and is seeking to enter the train for the purpose of being transported to his destination, and whether extraordinary diligence requires that a passenger be assisted in entering a train, may be dependent upon the circumstances and conditions surrounding the . . . facts of the particular case.

Decided July 16, 2014 —

Reconsideration denied July 31, 2014.

Simon Weinstein, Jeffrey W. Lasky, Brian E. Krapf, for appellant.

Brennan & Wasden, Joseph P. Brennan, Sandra V. Foster, Kathryn A. Westberry, for appellee.

Southern R. Co. v. Crabb, 10 Ga. App. 559 (73 SE 859) (1912). See also Payne v. Allen, 155 Ga. 54, 55 (116 SE 640) (1923) (no statute defines “passenger,” and existence of contractual passenger-carrier relationship depends on facts); McBride v. Ga. R. & Electric Co., 125 Ga. 515, 519 (54 SE 674) (1906) (“[T]he language employed in the decisions cited [regarding common carrier duties] varies somewhat. But what is said in reference to a case must be considered in the light of the facts of that case.”); Cuthbert, 190 Ga. App. at 551 (1) (whether duty existed and was exercised was jury question).

A contract of carriage existed between DeMott and Old Town Trolley. Because a question of fact remains regarding whether Old Town’s duty under that contract applied when DeMott fell, the trial court erred in granting summary judgment to Old Town on statute of limitation grounds. Therefore, I respectfully dissent to the majority opinion.

I am authorized to state that Presiding Judge Ellington and Judge Miller join in this dissent.

       The City of Savannah was dismissed from the action.

       The record reveals that during the pendency of this litigation, the parties entered into settlement negotiations. Old Town asserted that the parties had agreed to settle all claims arising out of DeMott’s fall for $4,500, but DeMott refused to sign the agreement. DeMott claimed that the parties only agreed to “settle the case under Mr. DeMott’s potential loss of consortium claim,” but that the agreement “was never consummated.” Old Town filed a motion to enforce the purported settlement agreement, but following a hearing the trial court ruled that “there was no mutual agreement as to the claims to be settled.”

       DeMott also asserts that the court’s ruling was in conflict with the consent order. But this was not a ruling on the merits of the breach of contract claim. The court simply acknowledged that the claim remained pending following its grant of summary judgment to Old Town on the premises liability claim.


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A14A0112.
    EMORY HEALTHCARE, INC. v. PARDUE.
    (760 SE2d 674)
   Ray, Judge.

Vivian Pardue (“Plaintiff”), by and through her daughter Chris Vance as next friend, filed a complaint for premises liability and ordinary negligence against Emory Healthcare, Inc. (“Defendant”) for injuries sustained when she slipped and fell on urine on the floor of her room. After the trial court granted the Defendant’s motion for summary judgment on the premises liability claim, but denied its motion for summary judgment on Plaintiff’s ordinary negligence claim, the case proceeded to a jury trial. Defendant appeals from the jury’s verdict in favor of the Plaintiff. On appeal, Defendant argues that the trial court erred by denying its motion for summary judgment and its motion for a directed verdict on the grounds that Plaintiff’s claims sound in medical malpractice, not ordinary negligence. Defendant additionally argues that the trial court erred in failing to take judicial notice of adjudicated facts and in allowing inadmissible evidence. Finding no reversible error, we affirm.

The record reveals that, in April 2007, the 72-year-old Plaintiff was admitted to Wesley Woods’ inpatient psychiatric unit to adjust her medications while in an inpatient setting. At the time of her admission, she was documented to have a history of dementia. Upon her admission to the facility, a history was taken, a fall-risk assessment was completed, and various evaluations were performed by Defendant’s employees, including nurse Pat Terry. These admission documents noted that Plaintiff had delirium, that her insight and judgment were poor, and that her cognition was impaired. In the “Fall Risk Assessment” and admission history, nurses noted that Plaintiff had several sensory and cognitive impairments, including cataracts, hearing loss, weakness, an unsteady gait and a history of dementia. Terry testified that Plaintiff was deemed to be a fall risk, and that the fall risk precautions provided that the patient be assisted getting out of bed. Terry testified that she was aware of Plaintiff’s conditions as noted in the records.

In the early morning hours of April 19, 2007, Plaintiff attempted to climb over the raised bed rails to go to the bathroom. Plaintiff’s actions triggered a bed alarm in the nursing station. Terry and nursing assistant Daphne Bridges responded to the alarm and went to Plaintiff’s room. When they got to the room, they assisted Plaintiff with her slippers and, with one on each side of her, assisted her in walking to the bathroom. As they were walking to the bathroom, Plaintiff urinated on the floor. They then led Plaintiff to the bathroom, sat her on the toilet and told her to stay there while they cleaned the floor. Terry and Bridges then left the bathroom and went into the patient’s room to wipe urine off the floor with bath towels. Nurse Margaret Richards also entered the room and helped clean the floor. At some point, Bridges and Richards left the room to fetch more towels, leaving Terry alone in the room.

Terry testified that she was bent over, with her back to Plaintiff, cleaning up the urine outside the door of the bathroom when Plaintiff got up, walked across the wet bathroom floor into her room and fell. Terry testified that she did not see Plaintiff get up off the toilet, that she did not see her walk through the bathroom, and that she did not see her fall. After her fall, Plaintiff was transported by ambulance to the emergency room where she was diagnosed with an ankle fracture.

Plaintiff filed suit against Defendant alleging claims of premises liability and ordinary negligence. Defendant moved for summary judgment on Plaintiff’s negligence claim, arguing that her claims sounded only in professional and not ordinary negligence. Its motion was denied. The trial court then held a bench trial and determined that, although the statute of limitation for a negligence claim had elapsed, Plaintiff was not competent at the time of her injury and, thus, that the statute of limitation as to her negligence claim was tolled pursuant to OCGA § 9-3-90. The case then proceeded to a jury trial on the ordinary negligence claim, and the jury awarded a verdict in favor of the Plaintiff.

1. Defendant contends that the trial court erred in denying its motion for summary judgment and its motion for directed verdict as to Plaintiff’s claim for ordinary negligence, arguing that Plaintiff’s claim sounds in medical malpractice. Because no expert affidavit was filed pursuant to OCGA § 9-11-9.1 and because the tolling provisions of OCGA § 9-3-90 do not apply to medical malpractice actions, Defendant claims that it was entitled to judgment as a matter of law. We disagree.

Simply because a patient’s injury occurs in a hospital setting or calls into question the actions of a medical professional does not mean that a suit to recover for that injury is necessarily a “medical malpractice” action. Rather, “[w]e must look to the substance of the action against a medical professional in determining whether the action is one for professional or simple negligence.” (Citation and punctuation omitted.) Brown v. Tift County Hosp. Auth., 280 Ga. App. 847, 849 (635 SE2d 184) (2006). “[I]n cases involving a person’s fall while in the care of medical professionals, it can be difficult to distinguish professional negligence from ordinary negligence. This distinction is a question of law for the court.” (Citations and punctuation omitted.) Id. In such cases, “the distinction between ordinary and professional negligence turns on whether the decision on how to monitor, assist or care for the patient was based on a professional assessment of whether the patient, based on the patient’s medical condition, required assistance of some sort.” (Citation omitted.) Chandler v. Opensided MRI of Atlanta, 299 Ga. App. 145, 147 (1) (682 SE2d 165) (2009). “If the specific information known to the defendant was such that a jury could determine without the help of expert testimony whether the defendant exercised due care in failing to prevent the patient’s fall, the claim sounds in ordinary negligence and no expert affidavit is required.” (Citation and punctuation omitted.) Id. See also Bardo v. Liss, 273 Ga. App. 103, 104 (1) (614 SE2d 101) (2005) (Where a medical professional’s alleged negligence involves “the exercise of professional skill and judgment to comply with a standard of conduct within the professional’s area of expertise, the action states professional negligence. But where the allegations of negligence do not involve professional skill and judgment, the action states ordinary negligence”) (citations omitted).

In resolving the issue of whether a medical professional is liable for professional negligence or ordinary negligence, this Court has “focused on the specific information known to the defendant about the victim’s condition and about the surrounding circumstances immediately prior to the victim’s fall.” (Citation omitted.) Tift County Hosp. Auth., supra. In Tift County Hosp. Auth., this Court held that a complaint could be construed as setting forth ordinary negligence as a basis for recovery when an occupational therapist exited the bathroom where a patient was showering to retrieve a bathrobe even though the patient told the therapist that she was slipping and needed help. Id. at 848-851. Further, the patient’s hospital and medical records indicated that the patient was prone to fall and needed “maximum assistance” when being bathed and “significant assistance” when being moved. Id. at 848. Similarly, in Donson Nursing Facilities v. Dixon, 176 Ga. App. 700, 700-701 (1) (337 SE2d 351) (1985), this Court held that an ordinary negligence theory was authorized, and thus expert opinion testimony was not required, when there was evidence presented on summary judgment of defendant nursing home’s knowledge of decedent’s propensities to set fires while smoking and of the failure of the nursing home to exercise any supervision of decedent while smoking. See also Brown v. Durden, 195 Ga. App. 340, 340-342 (393 SE2d 450) (1990) (physical precedent only) (action against physician and physician’s office staff, based on claim that physician’s assistant negligently permitted patient to remain seated and unrestrained on a high examining table, was not a medical malpractice action requiring an expert’s affidavit when physician’s assistant had been informed that patient had recently suffered from dizziness and nausea following a seizure). Compare Gen. Hospitals of Humana v. Bentley, 184 Ga. App. 489, 489-491 (361 SE2d 718) (1987) (claim against hospital for negligent failure to supervise 72-year-old patient as he exited bathtub was a professional negligence claim requiring expert testimony as to standard of care, even though patient fell three days after hernia repair surgery, because the “medical condition of the patient was the determinative factor as to the degree of supervision the patient was accorded by the hospital staff,” requiring the exercise of medical judgment. In holding that the decision not to supervise the patient while exiting the bathtub was an exercise of medical judgment, this Court indicated that the severity of the patient’s medical condition and the duty to supervise had not been established by the evidence).

Here, like the defendants in Tift County Hosp. Auth., supra, Donson, supra, and Durden, supra, it was shown on summary judgment and during trial that the nurses and nursing assistant assisting Plaintiff on the night of her fall were aware of her medical and cognitive conditions and that a duty to supervise her had been established prior to her fall. Plaintiff demonstrated that the nurses and the nursing assistant were aware that she had diminished cognitive condition, and that she had previously been determined to be a fall risk at the time of her fall. The nurses and the nursing assistant nevertheless left Plaintiff unattended in the bathroom, despite the fact that moments before she had been observed trying to get out of her bed by climbing over the side rails, and notwithstanding medical records reflecting that she had a history of dementia, presence of delirium, a history of falls in the previous three months, cognitive impairment, and poor insight and judgment. Under these circumstances, a jury could, without the help of expert testimony, find that the nurses and the nursing assistant failed to exercise ordinary care by leaving Plaintiff unattended in the bathroom while they cleaned her room. See Durden, supra (finding that a jury could determine without the help of expert evidence whether the “medical assistant exercised due care in leaving decedent unattended and unrestrained on the examining table after he had been brought to the office suffering from dizziness and nausea following an apparent seizure”). Accord Tift County Hosp. Auth., supra. The trial court did not err.

2. Defendant contends that the trial court erred in denying its request to take judicial notice of certain findings of fact and conclusions of law made by the trial court in the portion of its order granting Defendant’s summary judgment motion regarding Plaintiff’s premises liability claim. Defendant contends that these findings foreclose Plaintiff’s alternate claim of ordinary negligence. We disagree.

Defendant first argues that the trial court should have taken judicial notice of the findings in its summary judgment order pursuant to OCGA § 24-8-821. This argument is without merit because that Code section applies only to “allegations or admissions made in the pleadings” of another party and not to a trial court’s order.

Defendant next contends that the trial court should have taken judicial notice of its findings as adjudicative facts under OCGA § 24-2-201. Under this Code section, a trial court may take judicial notice of “a fact which is not subject to reasonable dispute” in that it is “[generally known within the territorial jurisdiction of the court”; or “ [c] apable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” It is well settled that “the taking of judicial notice of facts is, as a matter of evidence law, a highly limited process. The reason for this caution is that the taking of judicial notice bypasses the safeguards which are involved with the usual process of proving facts by competent evidence in . .. court.” Shahar v. Bowers, 120 F3d 211, 214 (11th Cir. 1997) (applying Fed. R. Evid. 201 (b)). Further, “in order for a fact to be judicially noticed . . . indisputability is a prerequisite.” (Citation omitted.) United States v. Jones, 29 F3d 1549, 1553 (III) (11th Cir. 1994) (applying Fed. R. Evid. 201 (b)). “Since the effect of taking judicial notice ... is to preclude a party from introducing contrary evidence and in effect, directing a verdict against him as to the fact noticed, the fact must be one that only an unreasonable person would insist on disputing.” (Citation omitted.) Id.

Here, Defendant asked the trial court to take judicial notice of the following findings of fact and conclusions of law made in the trial court’s summary judgment order as they related to Plaintiff’s claim for premises liability:

Nurse Terry communicated specific information to [Plaintiff, Ms. Pardue,] after seating her on the toilet: “Ms. Pardue, we need you to sit here, we need to clean the urine off the floor for safety, please sit down, stay there.” (Terry Depo., p. 49) On her own volition Ms. Pardue got up and walked to the very area she was told to avoid. The hazard was open and obvious. Ms. Pardue had equal knowledge of the hazard, and she failed to exercise ordinary care.

Defendant contends that these findings automatically foreclose Plaintiff’s alternate claim for ordinary negligence because of OCGA § 51-11-7, which provides: “If the plaintiff by ordinary care could have avoided the consequences to [herself] caused by the defendant’s negligence, [s]he is not entitled to recover.” However, this argument is without merit.

Although “[a] trial court may take judicial notice of its own records [,]” (citations omitted) Lee v. State Constr. Industry Licensing Bd. of Ga., 205 Ga. App. 497, 497 (1) (423 SE2d 26) (1992), a trial court cannot take judicial notice of matters that are the subject of proof in the case. See Eubanks v. Rabon, 281 Ga. 708, 711 (3) (642 SE2d 652) (2007) (trial court committed harmless error in taking judicial notice of an increase in the needs of children in a child support modification award because “the question whether there had been an increase in the needs of the children would be a matter of proof if it were placed in issue, it would not be a proper matter for judicial notice”) (citations omitted); Jones, supra at 1553 (finding that “to deprive a party of the right to go to the jury with his evidence where the fact was not indisputable would violate the constitutional guarantee of trial by jury”). As we noted above, in its analysis of the premises liability claim the trial court found, among other things, that Plaintiff “had equal knowledge of the hazard, and she failed to exercise ordinary care.” But in its analysis of the ordinary negligence claim the trial court found that “whether a plaintiff exercised the care that a prudent person in her condition and in the same or similar circumstances would exercise” and if “the plaintiff under the circumstances was so careless for her own safety as to lose her right to recover,” were questions for the jury. The trial court’s analysis and findings as to the premises liability claim and the ordinary negligence claim may well be inconsistent, but we do not need to decide that question. Rather, the Defendant cannot show by reason of the trial court’s order that it was indisputably established for purposes of the ordinary negligence claim that Plaintiff failed to exercise care for her own safety. To the contrary, it appears that the trial court intended for the issue of Plaintiff’s ordinary care for her own safety to be considered by the jury, thereby leaving the matter in dispute. It follows that the trial court did not err in refusing to take judicial notice of its findings of fact and conclusions of law as to the premises liability claim. See, e.g., Eubanks, supra at 711 (3).

3. Defendant next argues that the trial court erred in admitting certain testimony by Plaintiff’s daughter, Chris Vance, on the grounds that it constituted inadmissible hearsay. We disagree.

Specifically, Defendant argues that the trial court erred in allowing Chris Vance, over its objection, to testify that she spoke with a nurse employed by the Defendant named “Pat” the morning after her mother’s fall. The Defendant asserts that Vance’s testimony did not qualify as an admission by a party opponent under OCGA § 24-8-801 (d) (2) (D) and that the probative value of the testimony was outweighed by the danger of unfair prejudice. See OCGA § 24-4-403.

At trial, Vance identified “Pat” as Pat Terry, the first nurse to testify during the trial. Vance testified that Terry told her that while two employees (not including Terry) began to assist Plaintiff to the bathroom, she “excessively urinated” on the floor. Vance also testified that Terry stated that the Plaintiff was instructed to stand by the wall while they cleaned and that Terry was then called into the room only to bring more towels. Vance then testified that Terry informed her that when the Plaintiff thought the employees were finished cleaning, she walked around them to her bed and fell. Vance then stated that Terry “laughed” when she recounted the events.

The trial court overruled Defendant’s objection to this testimony at trial on the ground that it constituted an admission of a party opponent under OCGA § 24-8-801 (d) (2) (D). Under Georgia’s Evidence Code, an out-of-court statement offered against a party will not be excluded under the rule of hearsay if the statement is made “by the party’s agent or employee ... concerning a matter within the scope of the agency or employment, made during the existence of the relationship[.]” OCGA § 24-8-801 (d) (2) (D). See also Law v. BioLab, Inc., 325 Ga. App. 500, 502 (1) (753 SE2d 446) (2013) (“For a statement to be admissible under OCGA § 24-8-801 (d) (2) (C) or (D), the subject matter of the statement must relate to what the employee would know because of the employee’s job duties”) (citation omitted). The statement at issue was allegedly made to Vance by Terry about what happened on the night of Plaintiff’s fall. Further, it is undisputed that Nurse Terry was an employee of the Defendant and that the statement was a matter within the scope of her employment. Accordingly, the statement was an admission for purposes of OCGA § 24-8-801 (d) (2) (D). Pretermitting whether Defendant has shown that it sought to exclude the evidence under OCGA § 24-4-403 at trial, although Vance’s testimony contained prejudicial elements, some of which were also arguably unfair, her testimony was substantially probative in that it provided a version of events surrounding the Plaintiff’s fall. See, e.g., United States v. Meester, 762 F2d 867, 875 (11th Cir. 1985) (“Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter[.]”) (citation and punctuation omitted; emphasis in original) (applying Fed. R. Evid. 403). Accordingly, the trial court did not abuse its discretion in overruling Defendant’s objection to this testimony.

4. Defendant contends that the trial court erred in allowing evidence of Plaintiff’s medical expenses to be submitted to the jury over Defendant’s objection without expert testimony to establish that the medical costs were related to any injury sustained as a result of Plaintiff’s fall. Defendant contends that the admission of Plaintiff’s medical bills was in error because there was “absolutely no expert testimony separating bills related to [Plaintiff’s] ongoing cognitive condition from those resulting from her unrelated ankle injury.” We disagree.

Plaintiff tendered as evidence the medical bills incurred after Plaintiff’s fall. Defendant’s contention that Plaintiff “was allowed to admit, without explanation, the entirety of [Plaintiff’s] medical bills” is belied by the record. At trial, Chris Vance, Plaintiff’s daughter, testified that she went through each bill item by item and included only those charges which were obviously directly related to Plaintiff’s ankle injury and treatment for the ankle injury. Specifically, Plaintiff’s counsel stated that Vance

[went] through and separated out [bills] related to the injury.... And... with respect to [bills related to the nursing home, Wesley Woods] we ... did not include her entire stay. We only included x-rays of her ankle, the blood thinning injection . . . [and] [t]he only room charges were the room charges after the surgery, not before . . . and the physical therapy.

Defendant objected, arguing that expert testimony was required to distinguish bills that were related to Plaintiff’s ongoing cognitive condition from those resulting from her injuries sustained during her fall. The trial court overruled the objection, holding that such distinction could be determined upon cross-examination.

Under OCGA § 24-9-921 (a), a plaintiff patient or the member of her family responsible for care of the patient “shall be a competent witness to identify bills for expenses incurred in the treatment of the patient upon a showing by such a witness that the expenses were incurred in connection with the treatment of the injury . . . involved in the subject of litigation at trial____” Subsection (b) of the same Code section further provides that “it shall not be necessary for an expert witness to testify that the charges were reasonable and necessary. However, nothing in this Code section shall be construed to limit the right of a thorough and sifting cross-examination as to such items of evidence.”

“Where a party sues for damages, he has the burden of proof of showing the amount of loss in a manner in which the jury . . . can calculate the amount of the loss with a reasonable degree of certainty. An allowance for damages cannot be based on guesswork.” (Citation and punctuation omitted.) Lester v. S. J. Alexander, Inc., 127 Ga. App. 470, 471 (1) (193 SE2d 860) (1972). Further,

[w]here medical bills include charges for treatment, drugs, and hospitalization for items other than those arising out of the cause of action, the plaintiff has the duty to segregate the irrelevant expenses since he has the burden of proof to show his losses in such manner as can permit calculation thereof with a reasonable degree of certainty.

(Citation and punctuation omitted.) Daniel v. Parkins, 200 Ga. App. 710, 711-712 (4) (409 SE2d 233) (1991). This Court has held that all that is required is “that it be shown that medical expenses were incurred in connection with the treatment of the injury, disease or disability involved in the subject of litigation at the trial, which may be done by lay testimony.” (Citation and punctuation omitted.) Id. at 712. Accordingly, “[w]hether the edited medical bills did in fact represent treatment only for [Plaintiff’s] injury and whether any irrelevant bill for [her] pre-existing ... condition had been included in those submitted for admission were topics for [Defendant] to pursue on cross-examination.” (Citation omitted.) Id. Here, Plaintiff provided lay testimony that the edited bills admitted into evidence were related solely to the injury at issue in the present litigation, and Defendant elected not to cross-examine Chris Vance regarding these bills. There was no error in admitting the edited medical bills over Defendant’s objection.

Decided July 15, 2014 —

Reconsideration denied July 31, 2014 —

Bendin Sumrall & Ladner, B. David Ladner, Robert W. Stannard, for appellant.

Laura M. Shamp, for appellee.

Judgment affirmed.

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

       Two additional defendants, Wesley Woods Center of Emory University and Wesley Woods Long Term Hospital, Inc. were dismissed from the lawsuit prior to trial.

       The trial court granted the Defendants’ motion for summary judgment on Plaintiff’s claims for premises liability.

       OCGA § 24-8-821 provides: “Without offering the same in evidence, either party may avail himself or herself of allegations or admissions made in the pleadings of the other.”

       In denying Defendant’s motion to take judicial notice of its summary judgment order the trial court made it clear that it had considered the two claims separately, noting that
      [t]he reason I granted the motion on the premises liability had to do with an equal knowledge analysis. It was my belief that [Plaintiff] had equal, if not. . . greater, but at least equal knowledge [of the hazard]. I was not finding whether or not the nurse’s [sic] had any obligations to her with respect to how much supervision she needed on a toilet[.]

       During her deposition, Vance could only identify the speaker as a nurse named Pat who was in the room when her mother fell. At trial, after seeing nurse Terry testify, Vance positively identified her as the “Pat” she had spoken to on the day after her mother’s fall.

       Although it was not necessarily clear from Vance’s testimony that Terry had personal knowledge of all of the events about which she spoke, the personal knowledge requirement of OCGA § 24-6-602 “shall not apply to party admissions.” Id. This appears to be consistent with prior Georgia law. See Brooks v. Sessoms, 47 Ga. App. 554, 555 (171 SE 222) (1933) (finding that “[a]dmissions do not come in on the ground that the party making them is speaking from his personal knowledge”) (citation and punctuation omitted). Nor was there multiple hearsay inasmuch as Vance did not testify that Terry repeated statements made by a third person. See, e.g., Holiness v. Moore-Handley, Inc., 114 FSupp.2d 1176, 1183, n. 7 (N.D. Ala. 1999).

       To the extent that Defendant also suggests that Vance’s testimony constituted extrinsic evidence of a prior inconsistent statement by Terry and was not admitted in compliance with the requirements of OCGA § 24-6-613 (b) (which provides, in part, that “extrinsic evidence of a prior inconsistent statement by a witness shall not be admissible unless the witness is first afforded an opportunity to explain or deny the prior inconsistent statement”), we note that OCGA § 24-6-613 (b) states that it “shall not apply to admissions of a party-opponent as set forth in paragraph (2) of subsection (d) of Code Section 24-8-801.”

       Defendant also argues that the trial court erred in allowing a summary list of Plaintiff’s medical expenses to be admitted into evidence. However, when raised at trial, that objection was sustained, and the summary list was not admitted into evidence.

       Compare Eberhart v. Morris Brown College, 181 Ga. App. 516, 517 (1) (352 SE2d 832) (1987) (affirming trial court’s grant of directed verdict for the defendant/appellee on the ground that plaintiff had failed to prove through medical expert testimony a causal connection between the football injury he had sustained during his 1979-1982 collegiate football career and the physical condition which underlay the medical expenses he incurred several years later in 1985).


author: ELLINGTON, Presiding Judge. McMlLLlAN, Judge,

text:
    A14A0168.
    CASTELLANOS v. TRAVELERS HOME & MARINE INSURANCE COMPANY.
    (760 SE2d 226)
   ELLINGTON, Presiding Judge.

Luis Castellanos filed this action in the State Court of Gwinnett County against Travelers Home & Marine Insurance Company to recover uninsured motorist (UM) insurance benefits, statutory penalties for Travelers’ alleged bad faith in refusing to pay benefits, and attorney fees. The trial court granted Travelers’ motion for summary judgment and denied Castellanos’ motion, and he appeals both rulings. For the reasons explained below, we reverse in part, as to the court’s grant of summary judgment in favor of Travelers.

Under OCGA § 9-11-56 (c)
[sjummary judgment is warranted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. We review the grant or denial of a motion for summary judgment de novo, and we view the evidence, and the reasonable inferences drawn therefrom, in a light most favorable to the nonmovant.

(Punctuation and footnotes omitted.) Assaf v. Cincinnati Ins. Co., 327 Ga. App. 475, 475-476 (759 SE2d 557) (2014).

So viewed, the record shows the following undisputed evidence. On September 22,2009, Castellanos was injured in a wreck caused by the negligence of another driver, Jose Santiago. At the time of the wreck, Castellanos was a named insured under a UM policy Travelers issued to Lucrecia Arias, and he was driving a covered automobile.

Castellanos filed suit against Santiago for his injuries. Santiago’s liability insurance carrier, United Automobile Insurance Company, provided a defense. Castellanos also served the summons and complaint on Travelers as his UM carrier, and Travelers’ counsel participated in the suit through the end of the trial. After a trial, which Santiago did not attend, a jury returned a verdict in favor of Castellanos, and, on February 1, 2012, the trial court entered judgment against Santiago for $3,731 in compensatory damages, $3,269 in punitive damages, and $135.50 in court costs.

Castellanos demanded payment of the judgment from United as Santiago’s liability carrier. After some communication between counsel, United formally denied any coverage, based on Santiago’s “lack of cooperation in the defense of [Castellanos’] lawsuit and [his] failure to attend the resulting trial.” Castellanos then demanded that Travelers pay the compensatory damages under Arias’ UM policy. Travelers failed to pay UM benefits within 60 days of Castellanos’ demand.

Castellanos filed the instant action against Travelers, alleging, inter alia, that Travelers’ refusal to pay UM benefits was made in bad faith. Castellanos filed a motion for summary judgment, and Travelers filed a cross-motion. Travelers argued that there was no evidence that United’s denial of coverage on the basis that Santiago failed to cooperate in the defense was a legal denial of coverage and, therefore, that Santiago was not an uninsured motorist as defined in Arias’ UM policy. After a hearing, the trial court granted Travelers’ motion for summary judgment and denied Castellanos’ motion, finding that there was “no evidence that United reasonably requested Santiago’s cooperation, that Santiago willfully and intentionally failed to cooperate, that his failure to cooperate was prejudicial to United, and that [his] justification for failing to respond was insufficient.” Based on this determination, the trial court concluded that Castellanos “failed to present evidence that there was a ‘legal denial’ of coverage by United.”

1. Castellanos contends that the trial court’s ruling improperly shifted to him the burden of coming forward with evidence that supported United’s denial of coverage and that the trial court erred in granting Travelers’ motion for summary judgment. We agree.

One essential element of Castellanos’ action against Travelers was that Santiago was the owner or operator of an uninsured motor vehicle, as defined by Arias’ UM policy and Georgia law. OCGA § 33-7-11 (j). Under the applicable contractual and statutory definitions of an uninsured motor vehicle, an insured motor vehicle, such as the one Santiago was driving, could effectively become uninsured, retroactively to the date of an accident, when a driver’s liability carrier denies coverage, provided that such denial is, under applicable law, legally sustainable. When, on the other hand, a driver’s liability carrier denies coverage and such denial is not legally sustamable, the injured driver’s UM coverage generally will not apply, because the tortfeasor is not, technically, uninsured.

In this case, it is undisputed that Santiago’s liability policy required him to cooperate with United’s defense against Castellanos’ tort action and authorized United to withdraw coverage if Santiago failed to cooperate in the defense. Such cooperation clauses are enforceable under Georgia law. Thus, “[u]nder applicable law, the tortfeasor’s failure to cooperate can, under certain circumstances, form the legally sustainable basis for his liability carrier’s denial of coverage.” (Citation and emphasis omitted.) Southern Gen. Ins. Co. v. Thomas, 197 Ga. App. 196, 198 (397 SE2d 624) (1990). In addition, it is undisputed that Santiago failed to appear for trial in Castellanos’ tort action and that, after judgment, United denied coverage on the basis that Santiago breached that contractual duty to cooperate in the defense, in part by failing to attend the trial.

Travelers contends that it was nonetheless justified in failing to pay UM benefits, and the trial court agreed, finding that Castellanos failed to come forward with evidence that United’s denial of coverage was a legal denial. In casting upon Castellanos the burden of coming forward with evidence that United reasonably requested Santiago’s cooperation, that Santiago willfully and unjustifiably failed to cooperate, and that his failure to cooperate was prejudicial to United, the trial court required Castellanos to discharge a burden that United would have borne as a defendant in a suit under OCGA § 33-4-6 for bad faith penalties for denying coverage. See Vaughan v. ACCC Ins. Co., 314 Ga. App. 741, 742-743 (2) (725 SE2d 855) (2012). This was improper. Given the evidence that United denied coverage under Santiago’s liability policy based on his alleged failure to cooperate with the defense, a legal basis that falls squarely within the terms of the policy and is authorized under Georgia law,* this is not a case where the court is asked to presume Santiago’s status as an uninsured motorist. See Southern Gen. Ins. Co. v. Thomas, 197 Ga. App. at 19 7. Although evidence may exist that United’s denial of benefits (on the basis that Santiago failed to cooperate with the defense) was not legally sustainable (for example, if United never requested his cooperation), once Castellanos met his threshold burden of showing that he was entitled to UM benefits, Travelers had the burden of presenting such evidence to justify its denial of coverage, as it would for any other affirmative defense. See Anthony v. Larios, 256 Ga. App. 248 (568 SE2d 135) (2002) (noting that, where the plaintiff filed suit against another driver, alleging that he was an uninsured motorist, the plaintiff’s UM carrier answered in its own name, “raising the affirmative defense that [the tortfeasor] may not be uninsured”) (emphasis supplied). We conclude that the trial court improperly shifted to Castellanos the burden of coming forward with evidence to rebut Travelers’ affirmative defense that Travelers failed to support. Because the undisputed evidence does not establish that Santiago’s absence from the trial was involuntary or excused or that his failure to cooperate with United did not prejudice the defense, the trial court erred in finding that Travelers is entitled to judgment as a matter of law. The trial court’s order is reversed, in part, to the extent it entered summary judgment in Travelers’ favor.

2. Castellanos contends that the trial court erred in denying his motion for summary judgment. Because the question of bad faith is for the jury, however, this argument lacks merit.

Judgment affirmed in part and reversed in part.

Phipps, C. J., Barnes, P. J., and McFadden, J., concur. Andrews, P. J., Ray and McMillian, JJ., dissent.

McMlLLlAN, Judge,

dissenting.

I respectfully dissent to the majority’s opinion in this case because I believe it ignores long-standing principles of Georgia law and the language of the insurance policy at issue to improperly shift the burden to Travelers to prove Castellanos’s claim.

The primary issue raised on appeal is the legal question of whether the insured seeking UM coverage or the UM carrier bears the burden of proving that UM coverage applies in order to survive summary judgment. It is well settled, however, that Castellanos, as the insured, had “the ... burden to prove (1) the existence of a policy of liability insurance containing uninsured motorist protection, and (2) that [Santiago] was an uninsured motorist at the time of the [wreck]. The court could not presume that [Santiago] was an uninsured motorist.” (Citations and punctuation omitted.) Williams v. Safeway Ins. Co., 223 Ga. App. 93, 94 (476 SE2d 850) (1996). See siso Anthony v. Larios, 256 Ga. App. 248, 249 (568 SE2d 135) (2002); Hartford Accident & Indem. Co. v. Studebaker, 139 Ga. App. 386, 388 (1) (228 SE2d 322) (1976). See also Frank E. Jenkins et al., Georgia Automobile Insurance Law § 37:22 (2013-2014 ed.).

This requirement is simply a reiteration of the principle that an insured claiming an insurance benefit “has the burden of proving that a claim falls within the coverage of the policy.” Ga. Farm Bureau Mut. Ins. Co. v. Hall County, 262 Ga. App. 810, 812 (1) (586 SE2d 715) (2003). Thus, “[t]o establish a prima facie case on a claim under a policy of insurance the insured must show the occurrence was within the risk insured against.” Allstate Ins. Co. v. Grayes, 216 Ga. App. 419, 420 (1) (454 SE2d 616) (1995). See BayRock Mtg. Corp. v. Chicago Title Ins. Co., 286 Ga. App. 18, 19 (648 SE2d 433) (2007) (first element of a claim for an insurer’s bad faith is proof that the claim is covered under the policy); OCGA § 33-4-6. Here, no dispute exists that the Travelers’ policy (the “Policy”) provided UM coverage, but Travelers disputes that Castellanos carried his burden of establishing that Santiago was an uninsured motorist under its terms.

The applicable policy provisions state that Travelers agreed to “pay compensatory damages which an ‘insured’ is legally entitled to recover from the owner or operator of an ‘uninsured motor vehicle’ ” because of an insured’s bodily injury or property damage caused by an accident. The Policy defines an “uninsured motor vehicle” in pertinent part as “a land motor vehicle or trailer of any type ... [t]o which a liability bond or policy applies at the time of the accident but the bonding or insurance company . . . [IJegally denies coverage.” (Emphasis supplied.) Thus, in order to present a prima facie case that Santiago’s vehicle was an uninsured motor vehicle under the policy, Castellanos bears the burden of demonstrating not only that United denied coverage, but that it legally denied coverage. And this Court has held that “coverage [cannot] be said to have been legally denied unless the denial is, under applicable law, legally sustainable.” (Emphasis omitted.) Hemphill v. Home Ins. Co., 121 Ga. App. 323, 335 (5) (174 SE2d 251) (1970). Compare Moore v. State Farm Mut. Auto. Ins. Co., 196 Ga. App. 755, 757 (397 SE2d 127) (1990) (proof of legal denial of coverage not required where policy did not require a legal denial of coverage, but instead required only “ ‘that the insuring company den(y) coverage,’ ” to qualify for UM coverage).

The record reflects that United cited Santiago’s lack of cooperation as the basis for its denial of coverage, and it is well settled that

[a] co-operation clause is a material condition of a liability policy and a breach of it in any material respect relieves the insurer of liability. The voluntary and unexcused failure of an insured to attend a trial, after notice or request to do so, upon a claim covered by his policy of insurance is such a breach of the clause.

H. Y. Akers & Sons, Inc. v. St. Louis Fire & Marine Ins. Co., 120 Ga. App. 800, 803 (1) (172 SE2d 355) (1969). But to demonstrate a legal denial of coverage on the basis of a lack of cooperation in a case between a claimant and the tortfeasor’s insurer, the insurer must make a prima facie showing “(a) that it reasonably requested its insured’s cooperation in defending against the plaintiff’s claim, (b) that its insured wilfully and intentionally failed to cooperate, and (c) that the insured’s failure to cooperate prejudiced the insurer’s defense of the claim.” (Citations omitted.) Vaughan v. ACCC Ins. Co., 314 Ga. App. 741, 742-743 (2) (725 SE2d 855) (2012). See also Liberty Mut. Ins. Co. v. Coburn, 129 Ga. App. 520, 525 (3) (200 SE2d 146) (1973) (physical precedent only); Cotton States Mut. Ins. Co. v. Proudfoot, 123 Ga. App. 397, 397 (3) (181 SE2d 305) (1971); H. Y. Akers, 120 Ga. App. at 804-805 (3); OCGA § 33-7-15 (b). An insurer does not meet this burden merely by demonstrating that the insured failed to appear at trial. Coburn, 129 Ga. App. at 525 (3); Proudfoot, 123 Ga. App. at 397 (3). Because Castellanos chose not to add United as a party defendant or to obtain a prior determination that a legal denial of coverage occurred, as between Castellanos and Travelers, he necessarily bears the burden of proving that United legally denied coverage to Santiago as part of his prima facie claim for UM coverage. See Anthony, 256 Ga. App. at 249; Williams, 223 Ga. App. at 94; Hartford, 139 Ga. App. at 388.

Travelers sought summary judgment on the ground that Castellanos failed to present evidence to support any of the three elements required to prove the lack of cooperation required for establishing a legal denial of coverage. It is well settled that

a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case. Where a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010).

Castellanos initially argued below that he carried his burden of proof merely by showing that Santiago failed to attend the trial, which he asserted showed per se prejudice to United. But following the hearing on the motion for summary judgment, Castellanos’s attorney submitted a post-hearing brief and his own affidavit making additional assertions, apparently in support of the first two required elements for a lack of cooperation. Castellanos’s counsel asserted that (1) Travelers’s counsel never disputed United’s counsel’s claim that Santiago’s January 22, 2010 response to interrogatories was incomplete and not verified due to Santiago’s lack of cooperation, thus giving Travelers notice that Santiago was not cooperating two years before trial; (2) Santiago’s counsel stated that he did not supplement the interrogatory responses because he was unable to locate an address or telephone number for Santiago after he was served with the original complaint; (3) a November 7, 2010 affidavit from the son of another defendant was filed in the underlying action stating that Santiago did not reside at the address noted on the sheriff’s return of service for him; and (4) the same address was listed on the insured vehicle’s registration and the driver’s license Santiago showed to police.

But neither these assertions nor any other evidence of record provide proof of any efforts made by United to locate Santiago, to obtain his cooperation, or to secure his attendance at trial. Accordingly, Castellanos failed to carry his burden of establishing that an issue of fact exists as to whether United “exercised good faith and diligence in an effort to procure the attendance of the insured at the trial,” H. Y. Akers, 120 Ga. App. at 804 (3), or to otherwise secure his cooperation. See Liberty Mut., 129 Ga. App. at 525 (3) (where insured has no knowledge of suit and insurer with full knowledge of suit fails to make any effort to contact insured, insurer cannot defend claims based on lack of cooperation).

The record also contains no evidence demonstrating, or raising an inference of, an intentional or wilful refusal by Santiago to comply with any request by United for cooperation. Without such evidence, the trial court could not presume Santiago’s actions in that regard reflect a wilful and intentional failure to cooperate. See Cowart, 287 Ga. at 633 (3) (c) (motion for summary judgment cannot be denied “based on speculation or conjecture”); Proudfoot, 123 Ga. App. at 397 (3) (where no evidence was presented as to why insured did not appear at trial, even in light of evidence of conversations in which insured told her insurer that she planned to be at trial, insured failed to show a wilful or intentional refusal to cooperate); Liberty Mut., 129 Ga. App. at 525 (3).

Because Castellanos failed to present evidence creating a material issue of fact as to the first two requirements for showing a legal denial of coverage by United, his claim to recover UM benefits against Travelers fails, and I would not address the final requirement of showing prejudice. See Young v. Oak Leaf Builders, Inc., 277 Ga. App. 274, 278 (3) (626 SE2d 240) (2006) (when evidence as to any one essential element of claim is lacking, the claim fails and summary judgment is proper). Accordingly, in contrast to the majority, I would find that the trial court properly granted Travelers’ motion for summary judgment as to Castellanos’s claims.

The majority’s analysis erroneously shifts the burden of proving Castellanos’s prima facie case to Travelers. The majority asserts that Castellanos made out a prima facie claim merely by showing that Travelers provided him UM coverage, that he is legally entitled to recover from Santiago for the injuries he sustained in the accident, that United denied coverage on the basis of Santiago’s lack of cooperation, and that proof of Santiago’s failure to attend the trial is alone sufficient to show a lack of cooperation. But as discussed above, proof that an insured failed to attend trial is insufficient to establish the lack of cooperation necessary to establish a legal denial of coverage. Rather, it requires proof, at the very least, that the insurer made good faith efforts to secure the insured’s attendance and/or cooperation. Such evidence is completely lacking in this case. Although the majority argues that this is not a case in which this Court is asked to presume that Santiago is an uninsured motorist, the majority’s analysis would actually require that the Court make a series of presumptions based solely on Santiago’s failure to attend the trial — that United made good faith efforts to secure Santiago’s cooperation and/or attendance at trial, that his nonattendance and lack of cooperation was wilful or intentional, and thus that United legally denied him coverage — in order to find that Santiago was an insured motorist under the terms of the Policy.

Significantly, the majority fails to cite any authority to support its argument that the evidence of record is sufficient to make out a prima facie case for a legal denial of coverage. The case of Southern General Ins. Co. v. Thomas, 197 Ga. App. 196, 197 (397 SE2d 624) (1990), upon which the majority relies is readily distinguishable. In that case, before suing his own UM insurer, the insured first obtained a judgment against the tortfeasor and then pursued an “unsuccessful” garnishment action against the tortfeasor’s insurer, which had denied coverage based on the tortfeasor’s lack of cooperation. Id. at 196. It is entirely possible, if not presumable, that the garnishment action was unsuccessful because the tortfeasor’s insurer established that it legally denied coverage. But in any event, the UM carrier did not dispute that a legal denial of coverage had occurred. Instead, it argued that even given a legal denial of coverage, the insured was not entitled to UM coverage on other grounds. Id. at 198. Accordingly, Thomas does not support the majority’s analysis.

The majority also fails to cite any authority to support shifting the burden to an UM insurer to make out its insured’s prima facie case for coverage, because no such authority exists. Indeed, to make the radical shift in the law the majority is suggesting would require the overruling of longstanding Georgia case law and would necessitate appellate review by all 12 judges of this Court. OCGA § 15-3-1 (d). Contrary to the majority’s analysis, an insurer, like Travelers, who merely points to an insured’s lack of evidence to support his claim for coverage is not asserting an affirmative defense. Rather, it is simply arguing for summary judgment under the applicable standard for a party who will not bear the burden of proof at trial by pointing to its opponent’s failure to make out his prima facie case. Although the majority contends that Travelers’ argument on summary judgment equates with an affirmative defense because once this Court shifts the burden of proof to the insurer to make out its insured’s prima facie case, the insurance company will have to set up additional facts in justification of the other insurer’s denial of coverage. In doing so, the majority justifies shifting the burden to Travelers by arguing that it is asserting an affirmative defense, but it only becomes an affirmative defense because the majority has shifted the burden to the insurer. This circuitous reasoning is not supported by Georgia law.

Decided July 15, 2014 —

Reconsideration denied July 31, 2014 —

Larry E. Stewart, for appellant.

Magill Atkinson Dermer, David M. Atkinson, Marian L. Miller, for appellee.

For these reasons, I would affirm the trial court’s order granting summary judgment to Travelers.

I am authorized to state that Presiding Judge Andrews and Judge Ray join in this dissent.

       OCGA § 33-7-11 (j) provides, in pertinent part:
      If the [UM] insurer shall refuse to pay any insured any loss covered by this Code section within 60 days after a demand has been made by the insured and a finding has been made that such refusal was made in bad faith, the insurer shall be liable to the insured in addition to any recovery under this Code section for not more than 25 percent of the recovery and all reasonable attorney’s fees for the prosecution of the case under this Code section. . . .

       The precise issue presented by the record, the trial court’s ruling, and Castellanos’ arguments on appeal appears to be a matter of first impression. We do not find it necessary to overrule any controlling precedent. Accordingly, we reject the dissenters’ contention, see dissent at 685, that this opinion necessitates appellate review by all 12 judges of this Court.

       Footnote 1, supra. See generally Frank E. Jenkins III, Ga. Auto. Ins. Law, §§ 37:4 (demand for payment and bad faith), 37:5 (separate action for bad faith), 37:22 (proving uninsured status of offending motorist) (2013-2014 ed., updated October 2013).

       Under the terms of Arias’ UM policy, Travelers agreed to “pay compensatory damages which an ‘insured’ is legally entitled to recover from the owner or operator of an ‘uninsured motor vehicle’ because of” an insured’s bodily injury or property damage caused by an accident. In pertinent part, the policy defines an “uninsured motor vehicle” as a motor vehicle “[t]o which a liability bond or policy applies at the time of the accident but the bonding or insurance company . . . [l]egally denies coverage[.]”

       The UM statute provides in pertinent part that “ ‘[ujninsured motor vehicle’ means a motor vehicle... as to which there is... [bjodily injury liability insurance and property damage liability insurance in existence but the insurance company writing the insurance has legally denied coverage under its policy[.]” OCGA § 33-7-11 (b) (1) (D) (iii).

        Southern Gen. Ins. Co. v. Thomas, 197 Ga. App. 196, 197 (397 SE2d 624) (1990) (“Should the [tortfeasor’s] liability carrier later deny coverage, a cause of action against the [innocent driver’s] uninsured motorist carrier may then arise, because only at that time would there be an ‘uninsured’ motor vehicle as defined in OCGA § 33-7-11 (b) (1) (D) (iii).”) (citation, punctuation and emphasis omitted); Hemphill v. Home Ins. Co., 121 Ga. App. 323, 335 (5) (174 SE2d 251) (1970) (Liability coverage can be said to have been legally denied only if the denial is, under applicable law, legally sustainable.); Frank E. Jenkins III, Ga. Auto. Ins. Law, § 32:4 (legally denied liability coverage) (2013-2014 ed., updated October 2013).

        Hemphill v. Home Ins. Co., 121 Ga. App. at 335-336 (5).

        Vaughan v. ACCC Ins. Co., 314 Ga. App. 741, 742 (2) (725 SE2d 855) (2012) (“Once a plaintiff establishes his right to payment of a judgment against the insured tortfeasor, the insurer may defend against the claim by showing that it properly withdrew its coverage of the underlying incident because its insured failed to cooperate in [his or] her defense.”); H. Y. Akers & Sons v. St. Louis Fire & Marine Ins. Co., 120 Ga. App. 800, 803 (1) (172 SE2d 355) (1969) (“The co-operation clause is a material condition of a liability policy and a breach of it in any material respect relieves the insurer of liability.”). See also OCGA § 33-7-15 (a) (Every motor vehicle liability insurance policy shall require “the insured to send his insurer, as soon as practicable after the receipt thereof, a copy of every summons or other process relating to the coverage under the policy and to cooperate otherwise with the insurer in connection with the defense of any action or threatened action covered under the policy.”); see generally Frank E. Jenkins III, Ga. Auto. Ins. Law, §§ 23:1 (necessity of cooperation of insured), 23:4 (failure of insured to appear at trial) (2013-2014 ed., updated October 2013).

       In the event of a loss which is covered by a policy of insurance and the refusal of the insurer to pay the same within 60 days after a demand has been made by the holder of the policy and a finding has been made that such refusal was in bad faith, the insurer shall be liable to pay such holder, in addition to the loss, not more than 50 percent of the liability of the insurer for the loss or $5,000.00, whichever is greater, and all reasonable attorney’s fees for the prosecution of the action against the insurer. .. .
      OCGA § 33-4-6 (a).

       Once a plaintiff establishes [the] right to payment of a judgment against the insured tortfeasor, the [tortfeasor’s liability carrier] may defend against the [plaintiff’s] claim [for bad faith refusal to pay the tort judgment] by showing that it properly withdrew its coverage of the underlying incident because its insured failed to cooperate in [the] defense. [To justify a withdrawal of coverage based on the insured’s failure to cooperate,] [t]he insurer must show: (a) that it reasonably requested its insured’s cooperation in defending against the plaintiff’s claim, (b) that its insured wilfully and intentionally failed to cooperate, and (c) that the insured’s failure to cooperate prejudiced the insurer’s defense of the claim. Once the [tortfeasor’s liability carrier] presents evidence that it was entitled to withdraw coverage, the burden shifts to the plaintiff to establish that the [insured tortfeasor’s] failure to cooperate was justified.
      (Citations omitted.) Vaughan v. ACCC Ins. Co., 314 Ga. App. at 742-743 (2). See also H. Y. Akers & Sons v. St. Louis Fire & Marine Ins. Co., 120 Ga. App. at 802 (1) (To justify withdrawal of coverage, “[t]he non-co-operation must, of course, have been material — not merely technical or inconsequential in nature.”). Once the insurer presents evidence that it was entitled to withdraw coverage, the burden shifts to the plaintiff to establish that the insured’s failure to cooperate was justified in order to support the allegation that the insurer acted in bad faith in withdrawing coverage. Vaughan v. ACCC Ins. Co., 314 Ga. App. at 743 (2). See also OCGA § 9-11-9 (c) (“In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.”).

       Every person familiar with the trial of cases by jury knows that the case of an individual defendant is seriously, if not hopelessly, prejudiced by his absence from the trial. His failure to be present in defense of the claim can have an intangible effect upon the jury both as to the question of liability and the amount of the verdict, the net effect of which is difficult to measure. Unexpected developments in the plaintiff’s evidence might be offset by an explanation on the part of the insured.
      (Citations and punctuation omitted.) H. Y. Akers & Sons v. St. Louis Fire & Marine Ins. Co., 120 Ga. App. at 803 (1).

       Cf. Anthony v. Larios, 256 Ga. App. 248, 249 (568 SE2d 135) (2002) (Where an injured driver sued another driver and alleged that the other driver was uninsured, and the alleged tortfeasor defaulted and thereby judicially admitted that he was uninsured, such admission did not bind the injured driver’s UM carrier. Because the injured driver failed to present any evidence at trial that the alleged tortfeasor was uninsured, the UM carrier was entitled to judgment as a matter of law.); Hartford Accident & Indem. Co. v. Studebaker, 139 Ga. App. 386, 387 (228 SE2d 322) (1976) (Where an injured driver failed to present any evidence at trial to support his allegation that the alleged tortfeasor was uninsured, the UM carrier was entitled to judgment as a matter of law.).

       In response to the dissent at 684, we clarify that Castellanos made out a prima facie claim for UM benefits by showing that he is legally entitled to recover from Santiago for injuries he sustained in the accident; that Travelers provided him UM coverage, under Arias’ policy, which defined an uninsured motor vehicle as one to which, although a liability policy applied at the time of the accident, the liability carrier legally denied coverage; that Santiago’s liability policy authorized United to withdraw coverage on the basis of a lack of cooperation and such provision is consistent with Georgia law; and that United in fact denied coverage on that basis. It is not our position that proof of Santiago’s failure to attend the trial is alone sufficient to show a lack of cooperation. See id.

       The dissenters contend that the burden of proving a legally sustainable denial of coverage “is not unduly onerous.” Dissent at 684, n. 23. But the burden of proving the opposite — Travelers’ burden — is no more onerous and can be satisfied by the same mechanisms the dissent suggests. Travelers could name United as a third-party defendant and seek a declaration as to which policy provides coverage for Castellanos’ judgment, “thus placing the burden on United to prove a legal denial of coverage.” Id. Alternatively, Travelers could depose United’s counsel to determine what efforts counsel made to secure Santiago’s cooperation. Id. In discerning the parties’ relative burdens of coming forward, we must not lose sight of the purpose of UM insurance motorist legislation, which 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.” (Citation and punctuation omitted.) Hinton v. Interstate Guar. Ins. Co., 267 Ga. 516, 517 (480 SE2d 842) (1997). See also Smith v. Commercial Union Assur. Co., 246 Ga. 50, 51 (268 SE2d 632) (1980) (accord). “Uninsured motorist statutes are remedial in nature and must be broadly construed to accomplish the legislative purpose.” (Citation omitted.) Hinton v. Interstate Guar. Ins. Co., 267 Ga. at 518. Castellanos is the innocent driver here. Either Santiago’s liability policy with United should pay, or, if that policy provides no coverage and therefore Santiago is an uninsured motorist, Arias’ UM policy with Travelers should pay. The trial court’s ruling, which the dissenters would affirm, provides a windfall for one of the insurers, at the expense of the innocent driver.

        Willis v. Kemp, 130 Ga. App. 758, 759 (2) (204 SE2d 486) (1974) (When the defendant admits the essential facts of a plaintiff’s claim, and sets up other facts in justification or avoidance, such constitutes an affirmative defense for which the defendant has the burden of proof.); Williamson, Inman & Co. v. Thompson, 53 Ga. App. 821, 827 (9) (a) (187 SE 194) (1936) (If a defendant’s plea or answer admits essential facts of a petition, which show a right of recovery, but sets up other facts in justification or avoidance, or other special matters not merely elaborating or explaining a general denial, there is an affirmative defense, and the burden of proving an affirmative defense by a preponderance of the evidence rests on the defendant.); Joy T. Carmichael, 4 Ga. Proc. Evidence, § 1:18 (updated March 2014) (A defendant ordinarily has the burden of proof of establishing its affirmative defenses and must come forward with proof sufficient to establish each element of an affirmative defense.).

       In Southern Gen. Ins. Co. v. Thomas, the trial court correctly denied a UM carrier’s motion for summary judgment where the liability carrier denied coverage on the basis that the tortfeasor violated the liability policy’s cooperation clause by failing to appear at trial and the UM carrier did not contend that there was a genuine issue of material fact as to whether the particular circumstances of the tortfeasor’s failure to cooperate would form a legally sustainable basis for the liability carrier’s denial of coverage. 197 Ga. App. at 198.

        Jimenez v. Chicago Title Ins. Co., 310 Ga. App. 9, 12 (2) (712 SE2d 531) (2011); Certain Underwriters at Lloyd’s of London v. Rucker Constr., Inc., 285 Ga. App. 844, 850 (3) (648 SE2d 170) (2007); First Financial Ins. Co. v. American Sandblasting Co., 223 Ga. App. 232, 233 (2) (477 SE2d 390) (1996); St. Paul Fire & Marine Ins. Co. v. Snitzer, 183 Ga. App. 395, 397 (2) (358 SE2d 925) (1987).

       Although an insured must also prove the uninsured motorist’s liability for the insured’s damages, Santiago’s liability in this case was determined in the underlying suit filed by Castellanos. See Morton v. Horace Mann Ins. Co., 282 Ga. App. 734, 738 (2) (b) (639 SE2d 352) (2006) (it is well settled that injured party must first establish that driver of uninsured vehicle was legally liable); OCGA § 33-7-11.

       The Policy’s language mirrors the statutory definition of “uninsured motor vehicle” under OCGA § 33-7-11 (b) (1) (D) (iii).

       In response to Castellanos’s demand for payment, United’s counsel originally told him that United was prepared to pay the compensatory damages portion of the judgment in exchange for a satisfaction of judgment but would not pay the remainder of the award, asserting that Arias’s policy did not cover punitive damages. Castellanos’s counsel countered that Castellanos would provide only a partial satisfaction of judgment in response to the insurer’s payment of only part of the judgment. In response to this counteroffer, United wrote Castellanos to inform him that it was denying coverage based on Santiago’s lack of cooperation.

       In the affidavit, the attorney averred that “[t]he facts alleged by me in Plaintiff’s Reply Brief to Defendant’s Post-Hearing Brief as to the attached pleadings as Exhibits and my conversations with United’s ... [attorney] in the underlying case are true and based upon my personal knowledge.” Although the affidavit was a clear attempt to affirm hearsay as fact, Travelers raised no objection below, and thus the averments containing hearsay must be considered as evidence. See OCGA § 24-8-802.

       To the contrary, Castellanos’s counsel represented that United’s counsel told the jury in the prior litigation that Santiago had no idea that the trial was taking place. This led to a sustained objection on the ground that United was addressing facts not in evidence in its argument. As the objection indicates, Castellanos’s counsel was well aware that such representations are not evidence.

       I note that this burden is not unduly onerous. Castellanos could have named both United and Travelers as party defendants and sought a declaration as to which insurer had liability for his claims, thus placing the burden on United to prove a legal denial of coverage. At the very least, he could have deposed United’s counsel to determine what efforts he made to secure Santiago’s cooperation. But Castellanos took no such action.