author: Ellington, Presiding Judge.

text:
    A17A0246.
    DOWNES et al. v. OGLETHORPE UNIVERSITY, INC.
    (802 SE2d 437)
   Ellington, Presiding Judge.

Erik Downes, then a 20-year-old college student, drowned in the Pacific Ocean on January 4, 2011, while he was in Costa Rica attending a study-abroad program organized by Oglethorpe University, Inc. Elvis Downes and Myrna Lintner (the “Appellants”), as Downes’s parents and next of kin, and in their capacity as administrators of Downes’s estate, brought this wrongful death action alleging that Oglethorpe’s negligence and gross negligence were the proximate cause of Downes’s drowning. The trial court granted Oglethorpe’s motion for summary judgment, and the Appellants appeal. We affirm because, as a matter of law, Downes assumed the risk of drowning when he chose to swim in the Pacific Ocean.

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.

(Citations and punctuation omitted.) Assaf v. Cincinnati Ins. Co., 327 Ga. App. 475, 475-476 (759 SE2d 557) (2014). See also Johnson v. Omondi, 294 Ga. 74, 75-76 (751 SE2d 288) (2013) (accord).

So viewed, the evidence shows the following. During the 2010-2011 academic year, Oglethorpe offered to its students a 12-day study-abroad trip to Costa Rica. The students were charged a fee for the trip to pay for expenses such as airfare, lodging, and food. The students were also required to pay the “per credit tuition rate” and were to receive four credits toward their degree for academic work associated with the trip. Oglethorpe retained Horizontes, a Costa Rican tour operator, to coordinate the trip and to provide transportation and an English-speaking guide.

Dr. Jeffrey Collins was then the director of Oglethorpe’s study-abroad program. According to Collins, Oglethorpe tried to follow “best practices,” which is “defined as those protocols, procedures that as best and as far as possible ensure[ ] the safety of students.” He acknowledged that students would swim on the trips. Collins was not aware of any potential dangers in Costa Rica and did no investigation to ascertain if there were potential dangers in Costa Rica.

During pre-trip meetings with Downes and the five other students who had registered for the program, Dr. Roark Donnelly and Dr. Cassandra Copeland, the two professors who accompanied the students on the trip, asked the students if everyone was a good swimmer, and the students agreed that they were. The group also discussed swimming in the ocean, including “that there are going to be currents.” One of the professors told the students that, during a previous study-abroad trip to another location, a student had recognized that he was a weak swimmer and was required to wear a life jacket during all water activities. After hearing this, the students continued to express that they were good swimmers. Before leaving on the trip, the students were required to sign a release agreement which included an exculpatory clause pertaining to Oglethorpe.

The students and professors flew to Costa Rica on December 28, 2010. During the course of the trip, on the afternoon of January 4, 2011, the group arrived at a hotel on the Pacific coast. The six students, two professors, the guide, and the driver got into their bus and drove to a nearby beach, Playa Ventanas, which had been recommended by the hotel. Upon their arrival, there were other people on the beach and in the water. There were no warning signs posted on the beach, nor any lifeguards or safety equipment present.

The students swam in the ocean, staying mostly together, and eventually ventured out into deeper water. After about 20 minutes, Dr. Donnelly yelled for the students to move closer to shore. Shortly thereafter, student Robert Cairns, a former lifeguard, heard a female student screaming. Cairns swam toward the screams, and the student informed him that Downes needed help. Cairns realized that “some kind of current. . . had pulled us out.” Cairns swam to within ten feet of Downes and told him to get on his back and try to float. Downes could not get on his back, and Cairns kept telling him he had to try After some time, Downes was struck by a wave, went under the water, and disappeared from Cairns’s view. Downes’s body was recovered from the ocean three days later.

The Appellants filed this wrongful death action claiming that Downes’s death was the proximate result of Oglethorpe’s negligence and gross negligence. Evidence adduced during discovery included the testimony of Dr. John Fletemeyer, the Appellants’ expert in coastal sciences, that Downes had been caught in a “rip current” when he became distressed and ultimately drowned. Dr. Fletemeyer opined that some beaches on the western coast of Costa Rica are particularly dangerous “mainly [because of] the lack of lifeguards,” but also because of physical conditions such as “high wave energy force” and “pocket beaches,” and that Playa Ventanas was a pocket beach. He also testified that, in the context of the ocean, “every beach you go to is extremely dangerous.” Other testimony showed that a continuing problem with drownings on beaches along the Pacific coast of Costa Rica was well publicized in Costa Rica, and that the United States Consular Authority in Costa Rica had “published statistics about the danger of swimming on Costa Rica’s beaches and identified specifically the west coast beaches as being the most dangerous.”

Following discovery, Oglethorpe moved for summary judgment and argued that (i) Oglethorpe owed no legal duty to Downes; (ii) the Appellants’ negligence claims are barred by Downes’s written waiver of liability and there is a lack of evidence that Oglethorpe was grossly negligent; and (iii) Downes assumed the risk of swimming in the ocean. The trial court granted Oglethorpe’s motion for summary judgment.

1. The Appellants contend that Oglethorpe was not entitled to summary judgment on the ground that Downes, as a matter of law, assumed the risk of drowning when he swam in the ocean.

The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that he[,] without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.

(Citation and punctuation omitted.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996).

A defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks. The knowledge requirement does not refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury

(Citation and punctuation omitted.) Gilreath v. Smith, 340 Ga. App. 265, 268 (1) (797 SE2d 177) (2017). “As a general rule, whether a party assumed the risk of his injury is an issue for the jury that should not be decided by summary judgment unless the defense is conclusively established by plain, palpable and undisputed evidence.” (Citation and punctuation omitted.) Findley v. Griffin, 292 Ga. App. 807, 809 (2) (666 SE2d 79) (2008).

It is well established under Georgia law that “[t]he danger of drowning in water is a palpable and manifest peril, the knowledge of which is chargeable to [persons] in the absence of a showing of want of ordinary capacity.” Bourn v. Herring, 225 Ga. 67, 69 (2) (166 SE2d 89) (1969). See, e.g., White v. Ga. Power Co., 265 Ga. App. 664, 666 (1) (595 SE2d 353) (2004) (the “[p]erils of deep water are instinctively known”). The record does not show that Downes was aware of the presence of rip currents in the waters off the beach; however, “[i]t is the body of water per se that presents an obvious risk of drowning, not its attendant conditions such as a strong unseen current or a deep unknown hole.” Id. at 667 (1). As Downes was a competent adult, he was necessarily aware of the risk of drowning when he voluntarily entered the Pacific Ocean.

The Appellants contend that Oglethorpe had a duty to exercise ordinary care in the planning and implementing of its study-abroad program to avoid exposing the students to a risk of drowning. Because Oglethorpe owed this duty, they contend, the fact that Downes entered the water voluntarily does not establish as a matter of law that he assumed the risk of drowning. Rather, they contend, Oglethorpe created the dangerous situation by taking Downes to the beach without investigating its dangers, adopting an emergency preparedness plan, ensuring the professors in charge had adequate training and procedures for supervising swimming students, and supplying safety equipment.

Assuming that Oglethorpe, having undertaken a study-abroad program, was under a duty to act with reasonable care, and that there is evidence of record that Oglethorpe failed to do so, assumption of risk is nevertheless a defense to negligence. “Even if a defendant is negligent, a determination that a plaintiff assumed the risk or failed to exercise ordinary care for [his] own safety bars recovery for the resulting injury suffered by the plaintiff, unless the injury was wilfully and wantonly inflicted.” (Citation omitted.) City of Winder v. Girone, 265 Ga. 723, 724 (2) (462 SE2d 704) (1995). In Rice v. Oaks Investors II, 292 Ga. App. 692, 693-694 (1) (666 SE2d 63) (2008), the defendant was entitled to a directed verdict where, notwithstanding evidence that the defendants were negligent per se in failing to properly enclose the pool in which the ten-year-old decedent drowned, the child’s own negligence was the sole proximate cause of her death because the risk of swimming in the pool was obvious as a matter of law. Similarly, notwithstanding whether a defendant breached a duty to care for or supervise a decedent, the decedent’s assumption of the risk of injury may bar recovery. See Sayed v. Azizullah, 238 Ga. App. 642, 643-644 (519 SE2d 732) (1999) (findingno needto reach the issue of whether a duty was owed by the defendant to care for the 17-year-old decedent because the decedent was charged with appreciating the risk of swimming in the lake as a matter of law, and he voluntarily assumed that risk); Riley v. Brasunas, 210 Ga. App. 865, 868 (2) (438 SE2d 113) (1993) (any failure of the defendant to exercise the duty of an ordinary responsible guardian in watching over the seven-year-old child, who was injured using a trampoline, could not be the proximate cause of the child’s injuries where the child knowingly exposed himself to the obvious danger). See also Bourn v. Herring, 225 Ga. at 69-70 (2) (as the decedent, who was over 14 years old, was chargeable with diligence for his own safety against palpable and manifest peril, plaintiff could not recover against defendants for failure to exercise ordinary care in supervising the decedent in and around the lake in which he drowned).

As Appellants show, a decedent’s decision to enter a body of water with awareness of the physical circumstances is not necessarily determinative of whether the decedent assumed the risk of drowning. For example, the breach of a duty to provide statutorily required safety equipment may be “inextricable from the proximate cause of the damage.” (Citation and punctuation omitted.) Holbrook v. Exec. Conference Center, 219 Ga. App. 104, 107 (2) (464 SE2d 398) (1995) (finding that a jury could determine that the absence of statutorily mandated safety equipment was the proximate cause of the decedent’s drowning in the defendant’s pool). See Alexander v. Harnick, 142 Ga. App. 816, 817 (2) (237 SE2d 221) (1977) (where the decedent drowned after she jumped from the defendant’s houseboat into the water in an attempt to rescue her dog, and the defendant did not have any throwable life preservers on board, nor readily accessible life vests, as required by law, “a jury would not be precluded from finding that the absence of the safety equipment was the proximate cause of the decedent’s death merely because she entered the water voluntarily”). And in premises liability actions, the general rule is “that owners or operators of nonresidential swimming facilities owe an affirmative duty to exercise ordinary and reasonable care for the safety and protection of invitees swimming in the pool.” Walker v. Daniels, 200 Ga. App. 150, 155 (1) (407 SE2d 70) (1991).

Appellants do not show, however, that Oglethorpe was under a statutory or common law duty to provide safety equipment to its students during an excursion to the beach, or that the ocean is analogous to a nonresidential swimming pool. Nor can we conclude that Oglethorpe became an insurer for the safety of its students by undertaking a study-abroad program, or that it was responsible for the peril encountered by Downes in that it transported him to the beach. Compare Alexander v. Harnick, 142 Ga. App. at 817 (3) (an issue of fact remained as to whether, by taking decedent onto the water without the statutorily required safety equipment, defendant helped to create her peril). Because he was a competent adult, Downes would have appreciated the specific risk of drowning posed by entering a body of water so inherently dangerous as the Pacific Ocean. As Downes voluntarily did so, Oglethorpe established that he assumed that risk. Although Downes’s death was undeniably tragic, we are constrained to conclude that the trial court correctly granted Oglethorpe’s motion for summary judgment.

Decided June 30, 2017

Katherine L. McArthur, Caleb F. Walker, for appellants.

Swift, Currie, McGhee & Fliers, David M. Atkinson, for appellee.

2. The Appellants’ other claims of error are moot.

Judgment affirmed.

Andrews and Rickman, JJ., concur.

       The evidence showed that “[a] rip current is a strong outflow or stream of water usually beginning at the beach, moving perpendicular to the beach, beginning with the neck and then terminating at some point beyond the surf line[.]”

       Fletemeyer’s testimony is not explicit as to why pocket beaches are dangerous to swimmers, although, in the context of the line of questioning, his testimony implies that the physical characteristics of pocket beaches are associated with the formation of rip currents.

       The evidence did not show that Playa Ventanas, in particular, had an unusually high number of drownings.

       The Appellants also contend that the trial court erred in granting Oglethorpe’s motion for summary judgment (i) because Oglethorpe owed a duty to exercise ordinary care for the safety of its students in the planning and implementation of its study-abroad program, and material issues of fact remain regarding Oglethorpe’s negligence, (ii) the exculpatory clause in the release agreement signed by Downes is not enforceable, and (iii) gross negligence cannot be waived by an exculpatory clause, and material issues of fact remain as to whether Oglethorpe was grossly negligent.


source: Caselaw Access Project

author: Bethel, Judge. DOYLE, Chief Judge, McFADDEN, Presiding Judge,

license: Public Domain

text:
    A17A0399.
    PATTERSON et al. v. KEVON, LLC.
    (802 SE2d 442)
   Bethel, Judge.

Joshua and Taylor Patterson (the “Pattersons”) appeal from the trial court’s grant of summary judgment in favor of Kevon, LLC, the owner and operator of Big Kev’s Barbecue (“Big Kev’s”), a dining and catering establishment. The Pattersons attended a wedding rehearsal dinner at which chicken and other food items were prepared and served by Big Kev’s. The Pattersons later brought suit against Kevon, alleging that the food prepared and served by Big Kev’s at the dinner had been negligently prepared, was unsavory and contaminated, and had caused them a variety of ailments in the days following the rehearsal dinner. Finding that the Pattersons had not excluded all other reasonable possibilities for why they became sick, the trial court granted summary judgment in favor of Kevon. We agree with that determination and affirm the trial court’s ruling.

To prevail on a motion for summary judgment pursuant to OCGA § 9-11-56 (c), the moving party must demonstrate that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Because this case arises from a decision on Kevon’s summary judgment motion, we view the facts in a light most favorable to the Pattersons as the non-moving parties. Lau’s Corp. v. Haskins, 261 Ga. 491, 491 (405 SE2d 474) (1991).

So viewed, Big Kev’s provided a variety of foods for the rehearsal dinner, including barbecue chicken, macaroni and cheese, and cole slaw. Neither the Pattersons nor any other dinner guests inspected any of the food before consuming it, and the food served by Big Kev’s was never tested for salmonella or other pathogens. None of the guests suggested that the food served by Big Kev’s looked or smelled abnormal at the time it was served.

Desserts for the rehearsal dinner were prepared by someone other than Big Kev’s. The Pattersons each ate dessert at the dinner, but several individuals who reported becoming ill testified that they did not have dessert at the rehearsal dinner. There was a bartender at the rehearsal dinner (not employed by or affiliated with Big Kev’s) who served alcoholic beverages to guests. Several guests, including Joshua Patterson, drank alcohol at the rehearsal dinner, but Taylor Patterson did not recall drinking alcohol at the rehearsal dinner. Leftovers from the meal were stored in a cooler overnight by the groom’s parents and then consumed the following day by Joshua Patterson and other members of the wedding party Taylor Patterson did not eat the leftovers, nor did some of the other guests who later reported being ill.

A couple of days after the rehearsal dinner, the Pattersons were out of town when Joshua Patterson became ill with symptoms consistent with a salmonella infection. He sought medical treatment the following morning, and he was admitted to emergency care where he later tested positive for salmonella. He remained under medical care and supervision for several days, during which time Taylor Patterson also began to experience symptoms consistent with food poisoning.

The Pattersons returned home a few days later and learned that other guests who had eaten at the rehearsal dinner had also suffered symptoms consistent with salmonella poisoning around the same time Joshua Patterson had begun feeling ill. However, the owners of the event venue where the rehearsal dinner took place (and a number of its employees) consumed food that evening prepared by Big Kev’s, and they did not report becoming ill. Likewise, there were several other people who consumed the food served by Big Kev’s at the rehearsal dinner and as leftovers the following day who did not become ill.

The Pattersons brought suit against Kevon, alleging that the food served at the dinner by Big Kev’s had been negligently prepared and was the cause of their illnesses. The Pattersons also claimed that Kevon had violated the Georgia Food Act, OCGA § 26-2-20 et seq., by serving food that was adulterated and that Kevon was strictly liable for failing to warn the Pattersons of defective conditions in the food served at the dinner.

Kevon moved for summary judgment on each claim, arguing that the Pattersons had failed to demonstrate that the food prepared and served by Kevon was the proximate cause of the Pattersons’ illnesses. Specifically, Kevon noted the absence of scientific testing or other direct evidence that the food was underprepared or otherwise unfit for consumption and argued that the circumstantial evidence in the record failed to exclude every other reasonable hypothesis as to the cause of the Pattersons’ illnesses. Following a hearing, the trial court granted Kevon’s motion for summary judgment as to all claims on that basis. This appeal followed.

Because Kevon’s motion for summary judgment and the trial court’s order granting it focused solely on the issue of proximate cause, we do not consider whether the Pattersons have brought forward evidence to establish the other elements of their claims against Kevon. See Ashton Atlanta Residential v. Ajibola, 331 Ga. App. 231, 232 (770 SE2d 311) (2015) (“Ifthereisno evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim . . . [a] 11 of the other disputes of fact are rendered immaterial.”) (citation and punctuation omitted).

At the outset, we note that a plaintiff may prevail in food poisoning cases in Georgia by establishing that the food at issue was defective or unwholesome. Wilson v. Mars, 121 Ga. App. 790, 791 (2) (175 SE2d 924) (1970). However, in the absence of direct evidence of the defectiveness of the food, recovery can be supported by circumstantial evidence only if every other reasonable hypothesis as to the cause of the plaintiff’s illness can be excluded by the evidence brought forward by the plaintiff. See Payton v. Lee, 88 Ga. App. 422, 425 (77 SE2d 77) (1953). Here, we agree with the trial court that the Patter-sons have not met this burden.

Although both the Pattersons and a number of others who consumed the food served by Big Kev’s at the rehearsal dinner subsequently became ill, the record shows that a number of individuals who consumed the same food that evening did not become ill. Thus the Pattersons’ theory of the case does not exclude the possibility that the illness was transmitted to them from a source other than the food served by Big Kev’s or explain why others who consumed the food served by Big Kev’s did not become ill. Likewise, because Taylor Patterson only began to show symptoms of illness several days after her husband and others reported beginning to feel sick, she has not excluded the possibility that she became ill as a result of her exposure and proximity to Joshua while he was symptomatic.

We take note of the Pattersons’ argument that, in negligence suits, proximate cause is generally a question of fact that is reserved for the jury, citing our decision in Castleberry’s Food Co. v. Smith, 205 Ga. App. 859, 862 (2) (424 SE2d 33) (1992). However, suits alleging illness from food poisoning that are based entirely on circumstantial evidence are a unique species of negligence cases, and our prior decisions have required plaintiffs in this context to bring forth evidence demonstrating that the only reasonable hypothesis for why they became ill was due to acts or omissions of the defendant, to the exclusion of all other reasonable theories. See, e.g., Stevenson v. Winn-Dixie Atlanta, 211 Ga. App. 572, 574-575 (1) (440 SE2d 465) (1993).

This special element prevents a plaintiff from recovering solely on the basis of speculation and conjecture and requires plaintiffs to engage in a rigorous examination of all reasonable theories of contamination. See Edwards v. Campbell Taggart Baking Cos., 219 Ga. App. 806, 807 (1) (466 SE2d 911) (1996); Castleberry’s Food, 205 Ga. App. at 862 (2) (“[a] verdict based on conjecture cannot stand”). This standard also shields defendants from what, in some cases, may amount to fallacious post hoc, ergo propter hoc arguments that advance the plaintiff’s theory of contamination. See Mann v. D. L. Lee & Sons, 245 Ga. App. 224, 224 (537 SE2d 683) (2000) (providing that illness alone cannot establish proximate cause and that a mere showing that a person became sick subsequent to eating food is insufficient). In so doing, this rule reserves to the jury only those cases in which evidence brought forth by the plaintiff establishes a clear and direct link between the defendant’s food and the plaintiff’s injuries. Because the Pattersons have not carried that heavy burden in this case, we affirm the trial court’s grant of summary judgment in favor of Kevon.

Judgment affirmed.

Miller, P. J., Branch, McMillian andMercier, JJ., concur. Doyle, C. J., Barnes, P. J., McFadden, P. J., and Reese, J., dissent.

DOYLE, Chief Judge,

dissenting.

Based on the record before us, I disagree that the Pattersons have failed to meet their burden on summary judgment to put forth evidence that excludes every other reasonable hypothesis as to the cause of their illness.

Specifically, Big Kev’s posits that the rehearsal dinner dessert provided by a separate caterer, a bartender’s service of alcohol at the rehearsal dinner, Big Kev’s leftovers eaten the following day, food served at the wedding reception by another caterer, and, as to Taylor Patterson, her care for her husband while he was “contagious” are other reasonable hypotheses for the cause of their illness. However, besides the Pattersons, approximately seventeen other guests who ate at the rehearsal dinner also became ill, four of whom testified that they experienced the same symptoms within a similar time frame, with one of them also officially diagnosed with salmonella like Joshua Patterson.

In addition to the two formal diagnoses of salmonella linked to food poisoning, there is testimony from at least one person who became ill that he or she did not consume the dessert, alcohol, leftovers, or wedding reception food. Rather, the evidence shows that the only common food that the Pattersons and the four witnesses ate was the food served by Big Kev’s. The diagnosis of salmonella and this testimony are sufficient to exclude the alternative hypotheses posited by Big Kev’s as to the cause of the illness. Thus, the grant of summary judgment in favor of Big Kev’s was improper.

I am authorized to state that Presiding Judge Barnes and Presiding Judge McFadden join in this dissent.

McFADDEN, Presiding Judge,

dissenting.

I respectfully dissent. Because the trial court invaded the province of the jury in granting summary judgment to Big Kev’s, the judgment should be reversed.

There is no direct evidence that the food served by Big Kev’s at the rehearsal dinner was defective, so the Pattersons must rely on circumstantial evidence to satisfy the proximate cause element of their case against Big Kev’s. That is not an easy burden. To prevail on their claim at trial, the Pattersons must show that every other reasonable hypothesis as to the cause of their illness can be excluded. See Worthy v. Beautiful Restaurant, 252 Ga. App. 479, 481 (1) (556 SE2d 185) (2001); Castleberry’s Food Co. v. Smith, 205 Ga. App. 859, 861 (2) (424 SE2d 33) (1992).

But that is their burden of proof as the plaintiffs at trial. That is not their burden as the nonmovants opposing a motion for summary judgment. As to the defendant’s motion for summary judgment,

the burden of proof is always on the movant, even with respect to issues on which the plaintiff would have the burden of proof at trial. . . . On motion for summary judgment, all doubts as to evidence and the benefit of any conflict are to be indulged in favor of the opposing party and construed against the movant. If the trial court is presented with a choice of inferences to be drawn from the facts, all inferences of fact must be drawn against the movant and in favor of the party opposing the motion.

Barlow v. Orkin Exterminating Co., 196 Ga. App. 822, 823 (397 SE2d 170) (1990) (citation omitted). To survive summary judgment, a nonmovant need not have exhaustively examined deposition witnesses or conducted discovery in any particular way, contrary to the suggestion in footnote 3 of the majority opinion. The nonmovant’s sole obligation is to point to some evidence that creates a genuine issue of material fact.

Generally, in a case involving circumstantial evidence, the question of whether every other reasonable hypothesis can be excluded is not a question for the trial court on summary judgment (or this court on appeal). “[T]he sufficiency of the circumstantial evidence, and its consistency or inconsistency with alternative hypotheses, is a question for the jury.” Southern R. Co. v. Ga. Kraft Co., 258 Ga. 232 (367 SE2d 539) (1988). Summary judgment is not appropriate if the nonmovant can point to evidence creating a fact question about whether reasonable alternative hypotheses arise from circumstantial evidence. Where there is evidence from which a jury could find that food poisoning was the only reasonable cause of a plaintiff’s illness, and evidence that the defendant’s food was the only reasonable source of that food poisoning, even if that evidence “may strain credulity,” then a jury question is presented. Worthy, supra, 252 Ga. App. at 482 (1).

And applying these principles, Big Kev’s is not entitled to summary judgment. Viewed in the light most favorable to the Pattersons, the evidence shows that Joshua Patterson was diagnosed with salmonella a few days after eating food prepared by Big Kev’s and that several others who also ate the Big Kev’s food, including Taylor Patterson, experienced symptoms similar to Joshua Patterson. This is circumstantial evidence that the Big Kev’s food proximately caused Joshua Patterson’s salmonella and Taylor Patterson’s similar illness. It is for a jury to determine whether the other hypotheses advanced by Big Kev’s — such as the hypothesis that Joshua Patterson caught salmonella from a bartender — are reasonable and, if so, are excluded by the above evidence.

The cases cited by the majority do not require a different conclusion. In all of those cases, it was uncertain whether the plaintiff had food poisoning at all, rather than another type of illness or condition. See Mann v. D. L. Lee & Sons, 245 Ga. App. 224 (537 SE2d 683) (2000) (stool culture performed on one of the plaintiffs “revealed no pathogens”); Edwards v. Campbell Taggart Baking Cos., 219 Ga. App. 806 (466 SE2d 911) (1996) (plaintiff had a history of digestive problems, and his physician “opined that [plaintiff’s] illness was caused by his perception of what he ate and not by the quality of the [food]”); Stevenson v. Winn-Dixie Atlanta, 211 Ga. App. 572, 573 (440 SE2d 465) (1993) (plaintiff’s physician “indicated it [was] possible that the cause of illness was a virus,” rather than food poisoning); Castleberry’s Food Co., supra, 205 Ga. App. at 862 (2) (microbiologist testified that the type of food poisoning alleged by plaintiff was inconsistent with the timing of the onset of his symptoms, and although two doctors testified that plaintiff’s illness could be food poisoning, one of those doctors testified that there was an “endless list of possible causes” of his symptoms, including plaintiff’s pre-existing medical condition) (punctuation omitted). And although in Payton v. Lee, 88 Ga. App. 422, 425 (77 SE2d 77) (1953), the plaintiff’s physician testified that her illness was due to food poisoning, there was evidence of a viral illness “of epidemic proportions” in the plaintiff’s city with similar symptomology.

Decided June 30, 2017

Hill, Kertscher & Wharton, Blakely H. Frye, Travis M. Cash-baugh, for appellants.

Swift, Currie, McGhee & Hiers, Pamela N. Lee, Allison Ng, for appellee.

Here, in contrast, there was direct evidence that Joshua Patterson had contracted salmonella. This fact, combined with the evidence that several other people who had consumed the Big Kev’s food presented symptoms consistent with salmonella poisoning, was enough to survive summary judgment.

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

       During this period, the Pattersons ate several meals from various sources including a meal at the wedding reception not catered by Big Kev’s and at least one meal at a chain fast food establishment.

       Taylor Patterson was never tested for salmonella. Both of the Pattersons testified that she was treated for salmonella because her symptoms were similar to those of her husband. Like Taylor, there were other guests at the dinner who later reported being ill but who were never diagnosed with salmonella.

       The record in this case illustrates this point. In a deposition of one of the non-party witnesses, counsel for the Pattersons asked the witness only a pair of questions: “You weren’t experiencing any [symptoms] prior to [the dinner] were you?” and “[T]hose symptoms did not start until after eating at the rehearsal dinner . . . correct?” Plaintiff’s counsel repeated this colloquy with another witness, adding only a question as to how many days of work she had missed after becoming ill. To a third witness, plaintiff’s counsel asked only whether it was the witness’s opinion and belief that he had become ill due to eating the food served at the rehearsal dinner. In order to survive a motion for summary judgment in this type of case, a more thorough examination of the potential causes of illness is required.

       The rehearsal dinner took place on Friday, June 20, 2014. On June 23, Joshua began to experience diarrhea, vomiting, and chills. The next day, his stool sample tested positive for salmonella. Though she was not officially diagnosed with salmonella, on June 25, Taylor Patterson began to experience diarrhea, cramping, vomiting, stomach pain, and fever, and she was treated for salmonella. Andrew Love testified that on June 24, he began to experience diarrhea, vomiting, high fever, and chills. Love then sought treatment at the emergency room, where doctors took a stool sample that tested positive for salmonella resulting from tainted food. On June 22, Todd Wischerth became ill experiencing aches, fever, chills, sweating, shaking, diarrhea, and nausea that were so bad that he had to cancel his June 23 flight and reschedule it for June 26, when he still felt “pretty dicey.” Leslie Reynolds deposed that she suffered diarrhea and related symptoms from late Sunday night through Wednesday. And on Sunday night, Andrew Martin began suffering from severe diarrhea and chills, and he could not eat. Overall, these witnesses estimated that as many as 17 out of the 40 guests who attended the rehearsal dinner got sick.

       Reynolds, Wischerth, and Martin testified they did not eat the dessert. This testimony is evidence that would exclude the dessert as a reasonable hypothesis as to the cause of the illness.

       There is no evidence that Taylor Patterson consumed any alcohol at the rehearsal dinner. This would exclude the service of alcohol as a reasonable hypothesis. Further, according to Big Kev’s, “little is known about the bartender at the rehearsal dinner,” but the record shows that the bartender did not attend the wedding, and Love deposed that he learned that the bartender also ate Big Kev’s food and got salmonella within a couple of days. There is no evidence that the bartender was sick or had symptoms at the rehearsal dinner. An alternative hypothesis must be reasonable; a plaintiff does not have the burden to rule out tenuous or speculative hypotheses. Accordingly, this record does not support a reasonable hypothesis showing that the bartender was the source of the victims’ illness.

       Taylor, Reynolds and Wischerth testified they did not eat any leftovers. This testimony is evidence that would exclude the leftovers as a reasonable hypothesis.

       Love testified that he ate no food at the wedding reception. He also testified that the bartender from the rehearsal dinner ate there and got ill, and he did not attend the wedding. This testimony is evidence that would exclude the wedding reception food as a reasonable hypothesis.

       Big Kev’s also argues that because of the timing of her symptoms, Taylor Patterson “caught” her illness from her husband, so she cannot be relied upon to rule out alcohol as the source of illness. But this is speculative and is properly probed at trial and resolved by the jury. Thus, this theory does not create a reasonable hypothesis that her illness was causedby a source other than Big Kev’s food served at the rehearsal dinner that her husband consumed.


author: McMillian, Judge. BARNES, Presiding Judge,

text:
    A17A0453.
    AMERICAN SAFETY INDEMNITY COMPANY v. STO CORPORATION.
    (802 SE2d 448)
   McMillian, Judge.

Sto Corporation (“Sto”) filed suit against American Safety Indemnity Company (“ASIC”), asserting breach of contract, declaratory judgment, and bad faith claims arising from ASIC’s refusal to defend and indemnify Sto for claims related to stucco products that Sto had supplied to two building projects. ASIC now appeals the trial court’s order granting summary judgment to Sto on its breach of contract and declaratory judgment claims and on ASIC’s counterclaim for rescission and denying summary judgment to ASIC on Sto’s claim for bad faith. We reverse the denial of summary judgment to ASIC on Sto’s claim for bad faith, but affirm in all other respects as set forth below.

1. “We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant.” Corrugated Replacements, Inc. v. Johnson, 340 Ga. App. 364, 365 (797 SE2d 238) (2017). Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). So viewed, the record shows that Sto manufactures and sells exterior cladding products for residential and commercial construction, including stucco products and coating finishes. ASIC issued two sets of insurance policies to Sto. The first, issued annually from September 1, 2009, to September 1, 2012, were policies providing coverage for certain stucco products (the “Stucco Policies”). The second, issued annually from September 1, 2010, to September 1, 2012, were policies providing coverage for Sto’s coating products, including a product called Powerflex (the “Coating Policies”). This case arises from ASIC’s eventual refusal to defend and indemnify Sto in two separate lawsuits filed against Sto regarding products it supplied in residential building projects.

(a) Crescent Shores. Crescent Shores is a residential complex in South Carolina that was completed in 2004. On November 5, 2010, Sto notified ASIC of a potential claim related to the Crescent Shores complex. David Paight, ASIC’s assigned adjuster, responded via letter dated November 18, 2010, requesting additional information and asserting that ASIC’s “investigation and evaluation” was to be conducted under a reservation of rights. In January 2011, the Crescent Shores homeowner’s association filed a lawsuit against Sto and others (the “Crescent Shores Suit”), alleging that Sto’s stucco system had started to delaminate and fall off. On May 20,2011, ASIC notified Sto via letter that it was denying coverage, which described in detail various bases under the policy for denying coverage.

However, Paight testified at deposition that ASIC later re-evaluated its position and agreed on September 28, 2011 to defend the claim, thereafter taking control of the litigation. Paight also confirmed at his deposition that his claims notes indicated: “ASIC will provide a defense for this matter. Will update coverage position to [Sto] and their broker.” And although Paight’s claims notes also indicated “issued N.I. R.O.R.,” which he explained stands for “named insured reservation of rights to defend,” he had no recollection of whether he issued a reservation of rights in the Crescent Shores Suit, nor did he recall ever telling anyone at Sto that ASIC was defending Sto subject to a reservation of rights. Paight’s records also included a letter addressed to Sto, dated September 20, 2011, which contained a reservation of rights (the “Crescent Shores Reservation of Rights Letter”), but Sto claimed that, despite searching its paper and electronic files, it had no record of ever receiving that letter. ASIC continued to defend the Crescent Shores Suit until April 16, 2013 when it ultimately withdrew coverage, asserting that Sto had misrepresented when it first received notice of a claim for the Crescent Shores complex.

(b) Canal Side Lofts. Canal Side Lofts is a residential complex in Texas completed in 2006. In April 2011, Sto tendered to ASIC a lawsuit filed by the owner of Canal Side Lofts against Sto and other defendants asserting claims arising from the alleged blistering and delaminating of the stucco finish (“Canal Side Suit”). On May 18, 2011, ASIC responded with a letter seeking additional information and stating that ASIC would be conducting its “investigation and evaluation” under a full reservation of rights. On June 16, 2011, Sto provided ASIC with documents detailing the history of the Canal Side project. On August 1, 2011, after reviewing these materials, ASIC denied coverage for the claim on the basis that Sto was aware of problems with the Canal Side Lofts in 2008, prior to the applicable policy period. This letter also set out in detail the grounds for denying coverage under the policy.

Sto again responded, explaining that it had not received notice of the claim prior to the applicable policy period and enclosing documentation to support its assertion. Subsequently, ASIC reversed its denial and agreed to take over the defense of the Canal Side Suit under the 2009 Stucco Policy An August 20, 2012 e-mail sent by Paight indicates that this determination was conveyed orally to both Sto and Sto’s outside counsel. Several months later, Paight prepared a detailed letter regarding ASIC’s agreement to defend Sto that included a reservation of rights (the “Canal Side Reservation of Rights Letter”).

However, as in the Crescent Shores Suit, Sto contends, despite a search of its electronic and paper documents, that it did not receive this letter. In his deposition, Paight explained that in this instance, after drafting the letter, he sent it to a system called “assistant tasks,” where it would have been assigned to an administrative assistant to mail. But he has no way of knowing either who received the assignment or whether that person actually mailed the letter. Paight also deposed that he does not recall whether he orally conveyed ASIC’s reservation of rights to Sto, and Sto claims that it received no such oral message from ASIC. ASIC then continued to defend Sto throughout the trial, which on June 13, 2013 resulted in a jury verdict of $918,000 in favor of the plaintiff against Sto. The morning after the verdict, Paight obtained authority to engage coverage counsel to evaluate whether ASIC would be able to withdraw coverage at that point. Then, on July 3, 2013, ASIC notified Sto that it was denying coverage for the Canal Side Suit.

(c) This Litigation. In September 2013, Sto filed suit against ASIC, asserting breach of contract, declaratory judgment, and bad faith claims. ASIC counterclaimed, seeking to rescind the policies based on alleged misrepresentations Sto made in its policy applications regarding the loss history of Sto’s Powerflex product and the introduction of a reformulated coating product. After the parties filed cross-motions for summary judgment, the trial court issued an order granting Sto’s motion on its claims for breach of contract and declaratory judgment after finding that ASIC failed to properly convey a reservation of rights and was therefore estopped from denying coverage as a matter of law. In the same order, the trial court also granted summary judgment to Sto on ASIC’s rescission counterclaim, finding that Sto did not make any misrepresentations in its applications and that ASIC waived its right to rescind the policies. And finally, the trial court denied ASIC’s motion for summary judgment on Sto’s claim for bad faith, finding that questions of fact exist as to whether ASIC denied the Crescent Shore and Canal Side claims in bad faith. This appeal followed.

2. In its first enumeration of error, ASIC asserts that the trial court erred in granting summary judgment to Sto on its contract and declaratory judgment claims because ASIC’s “multiple reservations of rights” issued prior to the denial of coverage were sufficient as a matter of law to avoid estoppel. When an insurer is faced with a decision regarding how to handle a claim of coverage at the same time a lawsuit is pending against its insured, the insurer has three options under Georgia law. “First, the insurer can defend the claim, thereby waiving its policy defenses and claims of non-coverage.” Hoover v. Maxum Indem. Co., 291 Ga. 402, 404 (1) (730 SE2d 413) (2012). On the other end of the spectrum, “the insurer can deny coverage and refuse to defend [the insured], leaving policy defenses open for future litigation.” Id. Or, under the third option, the insurer can defend the claim under a “reservation of rights.” Id. at 404-05 (1). A reservation of rights is a term of art designed to allow an insurer to provide a defense while still preserving the option to later litigate and ultimately deny coverage. Id. at 405 (1).

Where an insurer fails to properly reserve its rights, it may be estopped from later denying coverage. It is well established under Georgia law that

risks not covered by the terms of an insurance policy, or risks excluded therefrom, while normally not subject to the doctrine of waiver and estoppel, may be subject to the doctrine where the insurer, without reserving its rights, assumes the defense of an action or continues such defense with knowledge, actual or constructive, of noncoverage[.]

(Citations omitted.) Prescott’s Altama Datsun, Inc. v. Monarch Ins. Co. of Ohio, 253 Ga. 317, 318 (319 SE2d 445) (1984). “The insurer can avoid estoppel by giving timely notice of its reservation of rights which fairly informs the insured of the insurer’s position.” (Citations and punctuation omitted.) World Harvest Church, Inc. v. GuideOne Mut. Ins. Co., 287 Ga. 149, 152 (1) (695 SE2d 6) (2010).

In determining whether a particular notice is sufficient, our Supreme Court has explained that, “[a]t a minimum, the reservation of rights must fairly inform the insured that, notwithstanding the insurer’s defense of the action, it disclaims liability and does not waive the defenses available to it against the insured.” (Citation and punctuation omitted.) World Harvest Church, 287 Ga. at 152 (1). “The reservation of rights should also inform the insured of the specific basis for the insurer’s reservations about coverage.” (Citation and punctuation omitted.) Id. (reservation of rights “cannot be only a statement of future intent”). Furthermore, “the reservation must be unambiguous; if it is ambiguous, the purported reservation of rights must be construed strictly against the insurer and liberally in favor of the insured.” (Citation and punctuation omitted.) Id. at 152-53 (1).

We focus our analysis then on the timing and content of the various communications ASIC contends constitute a reservation of rights. It is undisputed that ASIC, following its initial investigation into both the Crescent Shores and Canal Side Suits, denied coverage. The purpose of a reservation of rights is “to protect both the insurer and the insured by allowing an insurer who is uncertain of its obligations under the policy to undertake a defense while reserving its rights to ultimately deny coverage following its investigation.” Hoover, 291 Ga. at 406 (1). “Thus, a reservation of rights is only available to an insurer who undertakes a defense while questions remain about the validity of the coverage.” Id. at 405 (1). For this reason, an insurer cannot both deny a claim and reserve its right to assert other defenses later. Id. Rather, “[w]hen an insurer is presented with notice of a claim and demand for a defense, the proper and safe course of action is to enter upon a defense under a reservation of rights and then proceed to seek a declaratory judgment in its favor.” (Citation and punctuation omitted.) Id.

Here, ASIC points to several instances where it reserved its rights before it denied coverage in the Crescent Shores and Canal Side litigation. However, under Hoover, ASIC cannot both deny the claims and assert a reservation of rights, and we fail to see how a previous reservation of rights issued while ASIC was still investigating the claims would remain effective post-denial. Hoover, 291 Ga. at 405 (1). As our Supreme Court has explained, where an insurer has denied coverage for the claim at issue, the insurer is no longer “uncertain nor insecure in regard to its rights, status or legal relations.” Drawdy v. Direct Gen. Ins. Co., 277 Ga. 107, 109 (586 SE2d 228) (2003) (declaratory judgment action not available where insurer denied coverage). See also Hoover, 291 Ga. at 406 (1) (“reservation of rights does not exist so that an insurer who has denied coverage may continue to investigate to come up with additional reasons on which the denial could be based if challenged”) (emphasis in original).

In addition, to the extent ASIC asserts that Paight, who “could not recall the specifics or timing of the conversations,” testified that “coverage issues” were discussed with Sto on a quarterly basis, we find this insufficient to have unambiguously conveyed a reservation of rights to Sto following ASIC’s denial of coverage. “[A] mere allegation that the insurer contended that the insured was not covered by the policy, without more, does not show any reservation on its part of a right to insist that the coverage of the policy was not extended to him.” (Citation and punctuation omitted.) World Harvest Church, 287 Ga. at 152 (1). Moreover, we note that

[e]ven an insured who has actual knowledge of the contents of his policy and the possibility that the company might deny coverage when a claim is first asserted reasonably relies upon the provision of a defense without reservation of rights as an indication that the company has waived the coverage issue.

(Citation and punctuation omitted.) Id. at 153 (1). Accordingly, this enumeration of error fails.

3. In the alternative, ASIC asserts that the trial court erred in granting summary judgment to Sto on its claims for breach of contract and declaratory judgment because a genuine issue of fact remains regarding whether ASIC later reserved its rights via the Crescent Shores and Canal Side Reservation of Rights Letters. As noted above, Sto maintains that neither it, nor its agent or outside counsel, ever received these letters.

We turn first to the Canal Side Suit. Regardless of whether ASIC actually mailed the Canal Side Reservation of Rights Letter, such an attempt made several months after reversing its denial of coverage was not timely An insurer must act reasonably promptly in reserving its rights. See, e.g., Ga. Interlocal Risk Mgmt. Agency v. City of Sandy Springs, 337 Ga. App. 340, 348 (2) (788 SE2d 74) (2016). And

where, as here, an insurer assumes and conducts an initial defense without effectively notifying the insured that it is doing so with a reservation of rights, the insurer is deemed estopped from asserting the defense of noncoverage regardless of whether the insured can show prejudice.

World Harvest Church, 287 Ga. at 156 (2). “The undertaking to defend may be of no value, but of great danger, to the insured if, after abandoning all control of the suit, he may yet be liable for a judgment against him.” (Citation and punctuation omitted.) Id.

With respect to the Crescent Shores Suit, the Reservation of Rights Letter was dated several days before ASIC reversed course and agreed to provide coverage. Paight deposed that he had no recollection of either addressing or putting the Crescent Shores Reservation of Rights Letter in the mail but that his normal practice would have been to print the letter out, put it in an envelope, and then put it into the company’s outgoing mail. He then stated:

[a]nd then someone else would have actually gotten the postage on it and taken it to the Post Office. Or I guess they would have picked them up. I don’t really know how the mail was done.

ASIC argues that this testimony is sufficient to create a genuine issue of material fact regarding whether the letter was sent to Sto. We disagree.

“No presumption arises that a letter has been received in the mail unless it is shown that the letter (1) was written; (2) was properly addressed to the party; (3) contained the correct postage; and (4) was duly mailed in the United States Post Office.” (Citation and punctuation omitted.) Jones v. City of Willacoochee, 299 Ga. App. 741, 743 (683 SE2d 683) (2009). Even construing Paight’s testimony in favor of ASIC, it is clear that there is no evidence that he properly addressed the envelope, that either he or another individual added the correct postage, or that he or another individual placed the letter with the United States Post Office. Paight’s testimony established only his general practice of printing such letters and placing them in an envelope. See Jones v. O’Day, 303 Ga. App. 159, 163 (692 SE2d 774) (2010) (to the extent a party’s testimony amounts to no more than an unsupported conclusion, it cannot be considered in ruling upon a summary judgment motion). Therefore, ASIC has failed to create a genuine issue of material fact regarding whether the Crescent Shores Reservation of Rights Letter was sent to or received by Sto. See id.; cf. Burnside v. GEICO Gen. Ins. Co., 309 Ga. App. 897, 901 (2) (714 SE2d 606) (2011) (sufficient evidence of mailing where insurer submitted affidavit from output manager for its national print mail center who explained precise method of providing sufficient postage and mailing receipts). Accordingly, ASIC failed to effectively issue a reservation of rights and is therefore estopped from asserting noncoverage. See World Harvest Church, 287 Ga. at 153 (2).

4. In its third enumeration of error, ASIC asserts that the trial court erred in granting summary judgment in favor of Sto on ASIC’s counterclaim for rescission. “In order to void a policy of insurance for a misrepresentation in the application, the insurer must show that the representation was false and that it was material in that it changed the nature, extent, or character of the risk.” (Citation and punctuation omitted.) Jackson Nat. Life Ins. Co. v. Snead, 231 Ga. App. 406, 410 (3) (b) (499 SE2d 173) (1998); see also OCGA § 33-24-7 (b). The issue of materiality is ordinarily a question for the jury See Lively v. Southern Heritage Ins. Co., 256 Ga. App. 195, 196 (1) (568 SE2d 98) (2002).

In addition, under Georgia law, an insurer seeking to rescind a policy must make “[a]n announcement of the intent to rescind the contract ... in a timely fashion, as soon as the facts supporting the claim for rescission are discovered.” Holloman v. D. R. Horton, Inc., 241 Ga. App. 141, 146 (3) (524 SE2d 790) (1999). Moreover, after announcing its intent, the insurer “must adhere to the intent to rescind and may waive any claim for rescission by failing to do so.” Id. And “[ojnce a claim for rescission is waived, it cannot be revived.” Id. (courts are quick to seize upon any waiver of a forfeiture).

Here, ASIC bases its claim for rescission on responses Sto submitted when it applied for the Stucco and Coatings Policies, which ASIC now claims misrepresented whether Sto had notice of any claims related to its products. In the stucco applications, Sto stated that there were “no claims to date.” The application also included the option to attach a “loss summary,” which Sto provided. ASIC concedes that Sto also later amended its application to give notice of a lawsuit filed during the application process and tendered to Sto’s prior insurance carrier. As part of the application process, Sto also responded that it had no new products planned.

Based on these representations, ASIC issued the 2009 Stucco Policy In 2010, Sto applied to renew its Stucco Policy and also applied for a separate policy for its coating products, including Powerflex. In the Coating Policy application, Sto again opted to attach a loss summary, which disclosed a claim made under its prior insurance carrier. Again, as part of the application process, Sto completed a product questionnaire. Sto checked “No” when asked whether it had recently discontinued or was considering discontinuing any of its products. ASIC then renewed Sto’s Stucco Policy and issued the first Coatings Policy. These policies were renewed each year through 2012.

ASIC claims, however, that it later learned Sto had received numerous claims of blistering as well as customer demands that Sto replace or repair its products. According to ASIC, it did not discover the extent of Sto’s misrepresentations until the Canal Side Lofts trial in June 2013 where the evidence purportedly showed that Sto had a history of claims and knew that the source of the problem was a bad polymer in its Powerflex product.

Even assuming arguendo for purposes of summary judgment that Sto made material misrepresentations on the insurance applications and that ASIC “did not understand the extent or significance of the misrepresentations” until June 2013, we find that summary judgment is required for Sto on this issue. ASIC offers no explanation for why it failed to announce its intent to rescind the Stucco and Coating Policies until December 2013, in response to Sto’s suit filed against it. Georgia law is clear that “if a party to a contract seeks to avoid it on the ground of fraud or mistake, he must, upon discovery of the facts, at once announce his purpose and adhere to it.” (Citation and punctuation omitted.) Minnesota Lawyers Mut. Ins. Co. v. Gordon, 315 Ga. App. 72, 74 (726 SE2d 562) (2012). Here, upon learning of the “extent or significance” of the alleged misrepresentations, ASIC did not at once announce its intent to rescind the policies, but rather chose to issue a denial of coverage. In addition, Paight testified in August 2014 that ASIC continued to treat the Policies as if they remained in force with respect to other claims being handled under those Policies. Thus, pretermitting whether Sto’s applications included material misrepresentations, the trial court correctly concluded that ASIC has waived this defense as a matter of law. See C. Ingram Co. v. Philadelphia Indem. Ins. Co., 303 Ga. App. 548, 552 (2) (694 SE2d 181) (2010) (where insurer did not rescind policy but instead denied coverage, trial court did not err in granting summary judgment to insured). See also Gordon, 315 Ga. App. at 76 (an insurer, having taken a firm position as to its rights, is not entitled to declaratory judgment for purpose of seeking confirmation of its actions); Thompson v. Permanent Gen. Assurance Corp., 238 Ga. App. 450, 452 (519 SE2d 249) (1999) (insurer waives defense that misrepresentation voided policy if it treats policy as valid and binding). Accordingly, the trial court did not err in granting summary judgment to Sto on ASIC’s counterclaim.

5. In its final enumeration of error, ASIC asserts the trial court erred in denying summary judgment on Sto’s bad faith claim because (1) Sto failed to comply with the strict requirements of OCGA § 33-4-6 and (2) a reasonable basis existed to deny the claims. Pretermitting whether Sto complied with the requirements of OCGA § 33-4-6, we find that ASIC had a reasonable factual and legal basis for denying coverage such that bad faith penalties are not allowed.

OCGA § 33-4-6 provides the exclusive remedy for an insured’s claim of bad faith failure to pay policy proceeds. See Anderson v. Ga. Farm Bureau Mut. Ins. Co., 255 Ga. App. 734, 737 (2) (566 SE2d 342) (2002). Under this statute, “an insurer is subject to imposition of a penalty and attorney fees if it refuses in bad faith to pay a covered loss within 60 days after a demand has been made by the holder of the policy.” (Citation and punctuation omitted.) Jones v. State Farm Mut. Automobile Ins. Co., 228 Ga. App. 347, 350 (3) (491 SE2d 830) (1997). To prevail on its claim for bad faith, Sto must prove that (1) the claims are covered; (2) a demand for payment was made against ASIC within 60 days prior to filing suit; and (3) ASIC’s failure to pay was motivated by bad faith. See BayRock Mtg. Corp. v. Chicago Title Ins. Co., 286 Ga. App. 18, 19 (648 SE2d 433) (2007). Because OCGA § 33-4-6 imposes a penalty, its requirements are strictly construed. Id. “Penalties for bad faith are not authorized... where the insurance company has any reasonable ground to contest the claim and where there is a disputed question of fact.” (Citation and punctuation omitted.) Lawyers Title Ins. Corp. v. Griffin, 302 Ga. App. 726, 731 (2) (691 SE2d 633) (2010).

Ordinarily, the question of bad faith is one for the jury. See, e.g., Amica Mut. Ins. Co. v. Sanders, 335 Ga. App. 245, 250 (779 SE2d 459) (2015). However, “when there is no evidence of unfounded reason for the nonpayment, or if the issue of liability is close, the court should disallow imposition of bad faith penalties.” (Citation and punctuation omitted; emphasis supplied.) Id. (an insurer having any reasonable factual or legal ground for contesting claim is entitled to summary judgment under OCGA § 33-4-6). “Moreover, the mere fact of nonpayment is not evidence of bad faith, nor is any burden thereby cast on the insurer to prove good faith.” (Citation and punctuation omitted.) Old Republic Nat. Title Ins. Co. v. RM Kids, LLC, 337 Ga. App. 638, 650 (6) (788 SE2d 542) (2016). “Rather, bad faith is shown by evidence that under the terms of the policy upon which the demand is made and under the facts surrounding the response to that demand, the insurer had no good cause for resisting and delaying payment.” (Citation and punctuation omitted; emphasis in original.) Id. In addition, “a defense going far enough to show reasonable and probable cause for making it would vindicate the good faith of the company as effectually as would a complete defense to the action.” (Citation and punctuation omitted.) Choate Constr. Co. v. Auto-Owners Ins. Co., 335 Ga. App. 331, 340 (2) (779 SE2d 465) (2015).

Based on the record before us, we conclude that ASIC was entitled to summary judgment on Sto’s bad faith claim. The question of whether the previous reservations of rights were still effective had not been squarely answered in Georgia, and it may have appeared from a review of ASIC’s records that reservation of rights letters had been subsequently sent out once ASIC agreed to cover the litigation. See Griffin, 302 Ga. App. at 731 (2) (b) (reversing trial court’s denial of insurer’s motion for summary judgment on bad faith claim where nonpayment was based on its contention that claim was not a covered loss); Flynt v. Life of the South Ins. Co., 312 Ga. App. 430, 431 (718 SE2d 343) (2011) (where insurer’s reasons for refusing to pay were erroneous but not frivolous or unreasonable, summary judgment in favor of insurer is proper). Accordingly, we reverse that portion of the trial court’s order denying summary judgment to ASIC on Sto’s bad faith claim.

Judgment affirmed in part and reversed in part.

Doyle, C. J., Ellington, P. J., Andrews, Rickman, Mercier and Reese, JJ., concur. Barnes, P. J., concurs in part in Divisions 1, 2, 3, and 4 and dissents as to Division 5. Miller, P. J., concurs in part in Divisions 1, 2, 3, and 4 and in judgment only with the dissent in Division 5.

BARNES, Presiding Judge,

concurring in part and dissenting in part.

I respectfully dissent to Division 5 of the majority opinion that addresses Sto Corporation’s bad faith claim. Given the record before us, the question whether American Safety Indemnity Company (“ASIC”) acted in bad faith under OCGA § 33-4-6 by refusing to pay insurance policy proceeds to Sto should be resolved by a jury rather than by this Court. Consequently, the trial court’s denial of summary judgment to ASIC on Sto’s bad faith claim should be affirmed.

“It is usually a question for the jury whether an insurance company, in refusing to pay a loss, acted in bad faith” under OCGA § 33-4-6, and “bad faith” in this context does not require a showing of actual fraud by the insurer. Palatine Ins. Co. v. Gilleland, 79 Ga. App. 18, 23 (3) (52 SE2d 537) (1949). Rather, an insurer’s “complete failure to prove any defense to an action on the policy is evidence of the bad faith contemplated by OCGA § 33-4-6, and subjects the insurer to a verdict for the statutory penalty and attorney’s fees.” (Punctuation omitted.) Auto-Owners Ins. Co. v. Neisler, 334 Ga. App. 284, 290 (2) (779 SE2d 55) (2015), quoting Reserve Life Ins. Co. v. Ayers, 217 Ga. 206, 213 (3) (121 SE2d 649) (1961). And while “[a] defense going far enough to show reasonable and probable cause for making it, would vindicate the good faith of the [insurance] company[,] [a]ny defense not manifesting such reasonable and probable cause, would expose the company to the imputation of bad faith.” (Punctuation omitted.) Sawyer v. Citizens & Southern Nat. Bank, 164 Ga. App. 177, 183 (2) (c) (296 SE2d 134) (1982), quoting Interstate Life & Accident Ins. Co. v. Williamson, 220 Ga. 323, 325-326 (138 SE2d 668) (1964). If “it cannot be said as a matter of law that [the insurer’s] defense was a reasonable defense which vindicates the good faith of the insurer,” then the insurer is not entitled to summary judgment on the issue of bad faith penalties under OCGA § 33-4-6. (Punctuation omitted.) Sawyer, 164 Ga. App. at 183 (c), quoting Colonial Life & Accident Ins. Co. v. McClain, 243 Ga. 263, 265 (1) (253 SE2d 745) (1979). See Certain Underwriters at Lloyd’s of London v. Rucker Constr., 285 Ga. App. 844, 850 (3) (648 SE2d 170) (2007).

Here, as the majority thoroughly explains in Divisions 1-4 of its opinion, the uncontroverted evidence of record shows that ASIC waived its coverage defenses and its right to rescind the policies as a matter of law and thus had no basis for denying Sto’s claims. Given that the uncontroverted record shows that ASIC was not entitled to deny coverage to Sto, “it cannot be said as a matter of law that [ASIC] had a reasonable defense or probable cause to deny [Sto’s claims] (Emphasis in original.) Auto-Owners Ins. Co., 334 Ga. App. at 291 (2). See Sawyer, 164 Ga. App. at 183-184 (2) (c) (concluding that jury issue existed as to whether the insurer raised a “reasonable defense” to coverage and thus as to whether its nonpayment of claim was in bad faith, where summary judgment was granted to the insured on the issue of the insurer’s liability for loss of vehicle under the policy).

Furthermore, Sto presented some evidence, construed in its favor as the nonmovant on summary judgment, that ASIC’s ultimate decision to deny coverage was based on its own economic self-interest rather than a valid policy defense. Specifically, Sto presented evidence that although ASIC reversed its initial decision and chose to defend Sto in the Canal Side Lofts litigation, ASIC reversed course yet again and immediately engaged outside counsel to explore avoiding any payment of policy proceeds to Sto the day after the jury returned a $918,700 verdict against Sto. Sto also presented evidence that ASIC took control of the Crescent Shores Condominium litigation after initially denying coverage but then reversed course again and denied coverage only after the litigation had continued for another year and a half. In light of the timing of ASIC’s reversals of its decisions to defend the Canal Side and Crescent Shores claims, when combined with the uncontroverted evidence showing that ASIC was not entitled to deny coverage, a jury could find that ASIC’s refusal to provide coverage was frivolous and unfounded and thus rose to the level of badfaith. See King v. Atlanta Cas. Ins. Co., 279 Ga. App. 554, 556 (1) (631 SE2d 786) (2006) (“Bad faith for purposes of OCGA § 33-4-6 is any frivolous and unfounded refusal in law or in fact to pay according to the terms of the policy.”).

Decided June 30, 2017.

Carlton Fields Jorden Burt, Walter H. Bush, Jr., Christopher B. Freeman, Meredith W. Caiafa, for appellant.

Alston & Bird, Douglas G. Scribner, Jason R. Rottner, for appel-lee.

Under these circumstances, a jury should resolve whether ASIC acted in bad faith, and we therefore should affirm the trial court’s denial of summary judgment to ASIC on Sto’s bad faith claim under OCGA § 33-4-6. Because the majority concludes otherwise, I respectfully dissent.

I am authorized to state that Presiding Judge Miller joins in this dissent in judgment only

       Sto amended its original complaint to add the claim of bad faith under OCGA § 33-4-6.

       The parties do not point to any letter dated September 28, 2011 notifying Sto that ASIC would defend the claim, and we have found none.

       Upon later learning that ASIC claimed it had sent Sto a reservation of rights letter, Sto looked through its documents and spoke with its insurance broker and its outside counsel to see if anyone else had received a copy of the letter. No one had received a copy.

       Paight conceded that this letter did not reserve ASIC’s rights regarding defense of the claim.

       Again, upon learning that ASIC claimed it had sent a reservation of rights letter, Sto looked through its documents and spoke with its insurance broker and its outside counsel to see if anyone else had received a copy of the letter. No one had received a copy.

       He also conceded that no else at ASIC would have conveyed a reservation of rights to Sto.

       ASIC does not seek a finding of noncoverage under the terms of the policies, and we do not reach this issue.

       We acknowledge, however, that “[ajlthough written notification is preferable,” the equivalent oral notification, where it otherwise meets the minimum requirements under Georgia law, is generally accepted. World Harvest Church, 287 Ga. at 152 (1).

       Moreover, as noted in Division 2, ASIC is unable to rely on any oral reservation of rights because Paight could not recall the specifics or timing of his conversations with Sto and knew only that “coverage issues” were discussed. See World Harvest Church, 287 Ga. at 152 (1) (mere allegation that insurer contended insured was not covered by policy is not sufficient to show a reservation of rights).

       ASIC also contends Sto failed to disclose the nonrenewal of its previous coating products insurance policy.

       Sto asserts that the two claims at issue here are covered under the 2010 Stucco Policy.

       We also note that, even if Sto made material misrepresentations in the Coating Policies applications, there is no evidence that Sto’s representations regarding its coating products in those applications would serve as grounds to also void the Stucco Policies.

       Even if, as the dissent argues, Sto has presented some evidence that ASIC was in part motivated by its own economic self-interest, our law is clear that “penalties for bad faith are not authorized where the insurance company has any reasonable ground to contest the claim.” (Citation and punctuation omitted.) Auto-Owners Ins. Co. v. Neisler, 334 Ga. App. 284, 290 (2) (779 SE2d 55) (2015).

       I concur fully in Divisions 1-4 of the majority opinion.

       ASIC also argues that it was entitled to summary judgment on Sto’s bad faith claim under OCGA § 33-4-6 because Sto’s demand letters did not ask ASIC to pay a “sum certain.” But when an insured makes a demand to the insurer under OCGA § 33-4-6, “[n]o specific language is required.” BayRock Mtg. Corp. v. Chicago Title Ins. Co., 286 Ga. App. 18, 20 (648 SE2d 433) (2007). Rather, the language of the demand need only “be sufficient to alert the insurer that it is facing a bad faith claim for a specific refusal to pay so that it may decide whether to pay the claim.” (Citations and punctuation omitted.) Id. Sto’s demand letters met that notice requirement.


author: Branch, Judge.

text:
    A17A0441.
    In the Interest of W. B., a child.
    (801 SE2d 595)
   Branch, Judge.

Following an adjudicatory hearing in the Muscogee County Juvenile Court, the court found that W. B. had committed burglary in the first degree and had engaged in criminal gang activity The juvenile court therefore adjudicated W. B. delinquent and placed him in restrictive custody for five years. W. B. now appeals, asserting that the evidence was insufficient to support a finding that he had engaged in criminal gang activity. We agree with W. B., and we therefore reverse the adjudication of delinquency for criminal gang activity

In reviewing an adjudication of delinquency, this Court construes the evidence and all reasonable inferences therefrom “in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile committed the acts charged.”

In the Interest of A. G., 317 Ga. App. 165, 165 (730 SE2d 187) (2012) (footnote omitted). And in making that determination, “we neither weigh the evidence nor determine witness credibility” Id. (footnote omitted).

Viewed in the light most favorable to the adjudication of delinquency, the record shows that on January 19, 2016, W. B., together with his two juvenile co-defendants and an adult, burglarized a home in Columbus. In February 2016, the State filed a delinquency petition alleging that W. B. had committed burglary in the first degree, and it subsequently amended that petition to allege that W. B. had engaged both in the burglary and in criminal gang activity on January 19. W. B.’s case was heard together with the delinquency cases of his two juvenile co-defendants, J. W. and M. J. At the outset of the hearing, counsel for each of the three defendants announced that his or her client was admitting to the burglary charge but was contesting the charge of criminal gang activity. The State thereafter declined to present any evidence regarding the burglary or the police investigation of that crime.

In support of the charge of criminal gang activity, the State presented three witnesses: Corporal Michael O’Keefe, a patrol officer with the Columbus Police Department; Chris Samra, a special agent with the Georgia Department of Corrections, who was qualified as an expert in gang identification; and Marcus Dubose, Director of Student Services for the Muscogee County Schools.

O’Keefe testified that he had been a patrol officer for ten years, and during that time, he had received approximately 400 hours of training on criminal gangs and how to identify them. Additionally, O’Keefe stated that the area in which he patrols and in which the burglary occurred was known for “heavy gang activity.” The predominant gang in the area was the Winston Road Squad gang and in O’Keefe’s experience, that gang was involved in a number of illegal activities, including burglary rings, narcotics, prostitution, and the illegal sale of firearms. O’Keefe testified that he had taken the report of the burglary and at that time, the homeowner’s son reported having received text messages regarding people in possession of the stolen property O’Keefe did not testify, however, as to the alleged content of those messages or whether the messages referenced the Winston Road Squad gang. According to O’Keefe, the messages were sent by an individual known only as “Squad Boss,” but O’Keefe was not personally familiar with that individual. Although O’Keefe believed that Squad Boss was “suspected of being involved in gang activity,” O’Keefe did not identify either the gang that police believed Squad Boss belonged to or the gang activity in which Squad Boss was suspected of participating.

With respect to the three defendants, O’Keefe testified that he was familiar with all three juveniles from his time patrolling their neighborhood and that he previously arrested a number of their known associates. The officer, however, did not identify any of those associates or testify as to whether they were members of the Winston Road Squad gang. After police identified the three juveniles as suspects in the burglary, O’Keefe looked at each juvenile’s Facebook page to see if he could find any evidence of gang activity According to O’Keefe, such evidence would include pictures featuring the juveniles dressed in gang colors or other types of clothing typically worn by a specific gang; the juveniles “throwing” or making known gang signs with their hands; and the juveniles displaying firearms. On W. B.’s Facebook page, O’Keefe observed W. B. in photographs “holding up gang signs with his hands, wearing colors that [were] known to be worn by gang members,” and displaying firearms. Additionally, O’Keefe observed that W. B. had posted pictures of himself “with other individuals who have been arrested and are suspected of . . . criminal gang activity,” including one picture that showed Squad Boss. After viewing each defendant’s individual Facebook accounts, police charged them with criminal gang activity.

Samra, who was qualified as an expert in gang identification, testified that the Winston Road Squad gang was a street gang that functioned as a subset of a larger gang, the Gangster Disciples. The Winston Road Squad gang was known to engage in assaults, burglaries and armed robberies, and as a general rule, any proceeds from these activities would be used to fund the gang. Additionally, a portion of any money received by the Winston Road Squad gang would be forwarded to the Gangster Disciples. Samra further testified as to the difference between gang associates and gang members, explaining that associates were not “full-fledged” members. Instead, associates were people who “hung out” with gang members and who might provide some assistance to the gang. Samra also testified that the Winston Road Squad gang was a “hybrid gang,” and explained that hybrid gangs operate at a very local level and might include members of one or more larger groups. According to Samra, hybrid gangs are “kind of like the [T]ripie A version” of gangs — i.e., hybrid gangs are where members “learn how to do [this] stuff and then they move up into a more centralized core until they work their way up [in the main gang] like a military structure.”

With respect to social media, Samra testified that gangs use social media both as a recruiting tool and to establish what individual gang members have done as they work their way up in the gang hierarchy Samra explained that hybrid gangs often identify members on social media by having all members use the same middle name or initial. In this case, Samra had examined the Facebook accounts for W B. and his two co-defendants and he noted that all three used the initials “AG” in place of a middle name. The State introduced into evidence printouts from the Facebook pages of W B. and his co-defendants, and on their pages, all three juveniles displayed emojis that included guns, bombs, and dollar signs. Additionally, W. B. posted photographs of himself making signs with his hands that Samra said were gang signs, but Samra offered no testimony as to what gang would be associated with those signs. Samra noted that in some pictures, W. B. was making a “throwdown” sign, which was used by gang members to show that the member had weapons. Additionally, W. B. posted pictures of himself pointing a handgun at the camera, which Samra explained would be typical of gang members. Samra also stated that in some of the pictures, W. B. was dressed either in camouflage or was wearing a red hat, and Samra apparently saw that as a sign of gang membership, as he had previously testified that the wearing of certain colors would indicate gang affiliation. The State offered no testimony or other evidence, however, to show that red and camouflage were the colors of either the Winston Road Squad gang or the Gangster Disciples. Finally, Samra testified that the Facebook post showed W. B. and one of his co-defendants displaying tattoos of what could be their nicknames, and he observed that gang members often went by nicknames.

Dubose testified that in his capacity as Director of Student Services for Muscogee County, he served as a disciplinary hearing officer and he maintained the disciplinary records for Muscogee County students. Dubose stated that Rule 14 of the Muscogee County School District Behavior Code prohibits gang activity on school property. In August 2015, approximately five months before the burglary at issue, W. B. and one of his co-defendants assaulted a student at a Muscogee County middle school, and during the subsequent disciplinary proceedings, each admitted to violating Rule 14’s prohibition on gang activity.

Based on the foregoing evidence, the juvenile court found that W. B. had engaged in criminal gang activity. W. B. now appeals that decision.

Georgia’s Street Gang Terrorism and Prevention Act, OCGA § 16-15-1 et seq., makes it “unlawful for any person employed by or associated with a criminal street gang to conduct or participate in criminal gang activity through the commission of” certain enumerated criminal offenses, including burglary. See OCGA §§ 16-15-4 (a); 16-15-3 (1) (A); 16-14-3 (5) (A) (viii). Here, the delinquency petition alleged that W. B. had violated this statute by committing the burglary while “associated with the ‘Winston Road Squad’ gang.” Thus, to prove that W. B. had violated the Street Gang Act as charged, the State was required to show that W. B. was associated with the Winston Road Squad gang; that the Winston Road Squad gang was a criminal street gang; that W B. committed a predicate act of criminal gang activity, namely the burglary with which he was charged; and that the commission of the burglary “was intended to further the interests of [the Winston Road Squad gang].” Jones v. State, 292 Ga. 656, 659 (1) (b) (740 SE2d 590) (2013); Rodriguez v. State, 284 Ga. 803, 806-807 (1) (671 SE2d 497) (2009). On appeal, W B. asserts that the State failed to prove either that he was associated with the Winston Road Squad gang, or that the burglary was committed to further the interests of that organization. Assuming for purposes of this appeal that the State’s evidence sufficed to prove that W B. was associated with the Winston Road Squad gang and that the Winston Road Squad gang was a criminal street gang, we find that the evidence was insufficient to show that W B. committed the burglary to further the interests of the gang.

To sustain W. B.’s adjudication under OCGA § 16-15-4 (a), the State was required to prove “something more than the mere commission of a crime by gang members.” Randolph v. State, 334 Ga. App. 475, 481 (4) (780 SE2d 19) (2015). Instead, the State had to prove the existence of a nexus between the burglary “and an intent to further street gang activity” Rodriguez, 284 Ga. at 807 (1) (punctuation omitted). Put another way, to prove a violation of OCGA § 16-15-4 (a), it is “essential” that the State demonstrate “that the commission of the predicate act was intended to further the interests of the gang.” Morris v. State, 340 Ga. App. 295, 298 (1) (797 SE2d 207) (2017) (punctuation and footnote omitted). This requirement is satisfied by evidence that the gang received the proceeds from or otherwise benefitted from the commission of a particular crime. Evidence showing that a crime was done in retaliation for some act or insult committed against the gang or its members will also serve to show that the crime furthered the gang’s interests. See In the Interest of L. P., 324 Ga. App. 78, 84 (3) (749 SE2d 389) (2013); Morey v. State, 312 Ga. App. 678, 686 (2) (b) (719 SE2d 504) (2011). Additionally, Georgia courts have previously held that evidence showing that the crime was committed in a highly visible manner so as to allow witnesses and victims “to [discover] that a particular gang committed the crime,” Alston v. State, 329 Ga. App. 44, 47 (1) (763 SE2d 504) (2014), or evidence that the purpose of the crime was to establish, reinforce, or enhance the gang’s reputation satisfies the nexus requirement. Id. See also Randolph, 334 Ga. App. at 482 (4). This requirement is also satisfied where the State shows that gang members referenced a particular incident on social media so as to establish that the gang was responsible for a specific crime, either for the purpose of enhancing the gang’s reputation or intimidating others. See Morris, 340 Ga. App. at 300 (1). And evidence, including social media posts, that a specific gang member perpetrated the crimes so as to promote himself within the gang hierarchy would also suffice to prove the required nexus. See In the Interest of X. W., 301 Ga. App. 625, 629-630 (3) (688 SE2d 646) (2009).

Here, the State presented no evidence from which the juvenile court could conclude that W. B. committed the burglary to further the interests of the Winston Road Squad gang. Although the State presented evidence showing that W. B. and his co-defendants had posted pictures and other items on Facebook which indicated they held membership in a gang, there was no evidence showing that either W. B., his co-defendants, or other members of the Winston Road Squad gang had posted anything about the burglary on Facebook. Thus, the social media evidence gave no indication that W B. or his co-defendants had committed the burglary in an effort to promote themselves within the gang or to otherwise enhance the gang’s reputation. Nor did the State present any evidence showing that the victims of the burglary or any witnesses were aware that the crime was committed by members of the Winston Road Squad gang. Additionally, there was no evidence that the items stolen by the juveniles during the burglary were for anything other than their personal use. Accordingly, there was no evidence that the Winston Road Squad gang had benefitted from the burglary, either financially or otherwise.

Decided June 5, 2017

Reconsideration denied July 7, 2017.

Angela B. Dillon, for appellant.

Julia F. Slater, District Attorney, Danielle F. Forte, Assistant District Attorney, for appellee.

Given that the State failed to prove that W. B. committed the burglary to further the interests of the Winston Road Squad gang, we reverse the juvenile court’s finding that W B. engaged in criminal street gang activity. See Jones, 292 Ga. at 660 (1) (b).

Judgment reversed.

McFadden, P. J., and Bethel, J., concur.

       We note that some information regarding the burglary and the police investigation of the crime is included in the appellate record, as it appears the police reports were filed with the court in conjunction with the filing of the delinquency petitions. And in its appellate brief, the State cites these documents to support its argument that the evidence sufficed to prove that W. B. had engaged in criminal gang activity. Unfortunately, however, the State did not introduce any of those documents or testimony regarding the same into evidence at the delinquency hearing. Accordingly, we cannot consider them in determining whether the evidence sufficed to prove that W. B. had engaged in criminal gang activity. See, e.g., White v. State, 310 Ga. App. 386, 388 (2) (714 SE2d 31) (2011) (when this Court considers the sufficiency of the evidence, “we must ask whether any rational [trier of fact] could find proof of guilt beyond a reasonable doubt in the evidence adduced at trial, viewing that evidence in the light most favorable to the verdict”) (citation omitted; emphasis supplied).

       O’Keefe did not testify what the signs were, what the colors were, or with which gang or gangs the signs and the colors were associated.

       The State introduced a copy of Rule 14 into evidence, and the rule provides:
      Gang activity is prohibited. Gangs are clubs, groups, or organizations of limited membership, which are known to advocate, practice, engage or participate in unlawful acts such as intimidation, violence, or destruction to property. Gangs are not permitted on school premises or in school facilities. Gang members are prohibited from conducting any activities, meetings, or gatherings on or about school facilities, premises, or property at any time.

       See OCGA § 16-15-3 (2) (providing that the existence of a “criminal street gang” “maybe established by evidence of a common name or common identifying signs, symbols, tattoos, graffiti, or attire or other distinguishing characteristics, including, but not limited to, common activities, customs, or behaviors”); Zamudio v. State, 332 Ga.App. 37, 41 (2) (a) (771 SE2d 733) (2015) (evidence that defendant had grown up in gang territory, that officer had seen numerous photographs of defendant with other gang members in front of a sign identifying a gang neighborhood while making the sign of that gang, and that defendant participated in a fight on behalf of the gang sufficed to prove defendant was a member of that gang). Compare Jones, 292 Ga. at 659 (1) (b) (reversing defendant’s conviction for criminal gang activity because “although officers testified at trial that members of the Southside Bloods often display certain symbols and colors, no evidence was presented that [defendant] or any of his accomplices displayed those symbols or colors, either on the day of the [crime] or at any other time”); In the Interest of A. G., 317 Ga. App. at 166 (evidence that three juvenile defendants wore bandanas, which an officer testified was indicative of gang membership, and that a fourth juvenile kept a notebook “written in a style associated with gangs” was “insufficient to prove beyond a reasonable doubt that the four juveniles were members of a criminal street gang”) (footnote omitted).

       As noted above, W. B. admitted that he had committed the first degree burglary with which he was charged.

       During the evidentiary portion of the hearing, the State presented no evidence of what happened to the property that was stolen during the burglary. Statements made during the sentencing phase of the hearing, however, indicated that at least some of that property was returned to the homeowner.