author: Ray, Judge. MILLER, Presiding Judge,

text:
    A12A1989.
    AGNES SCOTT COLLEGE et al. v. HARTLEY.
    (741 SE2d 199)
   Ray, Judge.

This case arises from an investigation of an alleged assault involving a student of Agnes Scott College (hereinafter, “ASC”), in DeKalb County, which resulted in Amanda Hartley’s arrest for aggravated sexual battery, sexual battery, and simple battery. After the district attorney dropped the charges, Hartley filed suit against ASC and three of its campus policemen, Gaetano Antinozzi, Gregory Scott, and Henry Hope (collectively, “Defendants”). In her complaint, Hartley raised claims for false arrest, false imprisonment, intentional infliction of emotional distress and punitive damages. Defendants moved to dismiss Hartley’s complaint for lack of subject matter jurisdiction due to official immunity and failure to state a claim. Following a hearing, the trial court denied Defendants’ motion to dismiss. This Court granted Defendants’ application for interlocutory appeal. For the reasons that follow, we reverse the trial court’s decision.

“On appeal, this Court reviews the denial of a motion to dismiss de novo. However, we construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in the plaintiff’s favor.” (Citation and punctuation omitted.) Ga. Dept. of Community Health v. Data Inquiry, 313 Ga. App. 683 (722 SE2d 403) (2012).

A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof, and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

(Citation omitted.) Smith v. Germania of America, 249 Ga. App. 587, 588 (1) (549 SE2d 423) (2001).

So viewed, the abbreviated record on the motion to dismiss shows that an ASC student reported that Hartley sexually assaulted her in her ASC dorm room. The student made the initial report to Scott, who informed Antinozzi. Antinozzi conducted a further investigation. However, the complaint alleges that Antinozzi, Scott and Hope failed to make a reasonable effort to corroborate or investigate the student’s allegations.

Hartley’s complaint alleges that a “reasonable investigation” would have established that Hartley was not at the student’s dorm at the time of the alleged assault. Rather, she was in Knoxville, Tennessee, at the time in question. The complaint further alleges that a “reasonable investigation” would have revealed that ASC’s dorm logs show that Hartley had never been in the student’s dorm and that no independent witness could testify that they had ever seen Hartley there. Two days after the reported assault, Antinozzi sought arrest warrants for Hartley on charges of aggravated sexual battery, battery, and sexual battery.

Upon obtaining arrest warrants against Hartley, Antinozzi contacted the Knoxville Police Department and initiated proceedings resulting in Hartley’s arrest in Tennessee, and her extradition to DeKalb County. At a subsequent hearing, Antinozzi reiterated the charges made by the ASC student, but produced no witnesses or physical evidence. The district attorney dropped all of the charges against Hartley after she presented evidence showing that she was not in Georgia at the time of the alleged offenses.

Hartley then filed this action against the Defendants and ASC. Hartley asserted that all three campus policemen were acting within the scope of their employment as members of ASC’s Department of Public Safety at all relevant times and that Hope was responsible for ensuring that allegations of criminal conduct at ASC were properly investigated. Hartley further asserted that ASC and the campus policemen breached their legal duty not to falsely arrest or imprison her; that their conduct constituted intentional infliction of emotional distress; and that their conduct entitled her to recover punitive damages.

Defendants filed their answer and denied liability. Defendants then moved to dismiss Hartley’s complaint, contending (1) that the trial court lacked subject matter jurisdiction, because the campus policemen are law enforcement officers who were acting within the scope of their official duties and, thus, were immune from liability; and (2) that Hartley failed to state a claim against ASC, because a private employer of “special policemen” is not vicariously liable for the policemen’s actions in furtherance of their public duties.

In denying their motion to dismiss, the trial court found that the campus policemen were not State officers or State employees under OCGA § 50-21-22 (7), and that they were not otherwise entitled to official immunity. The trial court specifically found that, although the campus policemen had law enforcement powers, they were not “law enforcement officers” acting on behalf or in the service of the State as defined by OCGA § 50-21-22 (7). The trial court also found that Hartley stated a claim against ASC because the complaint showed that the campus policemen were acting within the scope of their employment for ASC when they committed the allegedly tortious acts.

1. On appeal, Defendants contend that the trial court erred in finding that law enforcement officers employed by private colleges and universities are not immune from suit under the Georgia Tort Claims Act (“GTCA”), OCGA § 50-21-20 et seq. We agree that, under the facts of this case, the police officers were entitled to immunity.

The Georgia Constitution provides that sovereign immunity extends to the State and all of its departments and agencies, and that the State’s sovereign immunity can only be waived by a constitutional provision or an Act of the General Assembly that specifically provides for such waiver and the extent thereof. Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e).

(Citations, punctuation and footnote omitted.) Data Inquiry, supra at 685 (1). The GTCA provides that State officers or employees who commit torts while acting within the scope of their official duties or employment are not subject to lawsuit or liability for those acts. See OCGA § 50-21-25 (a). Defendants argue that the campus policemen are entitled to immunity because they are law enforcement officers within the meaning of OCGA § 50-21-22 (7). The issue of whether the campus policemen were entitled to immunity under the GTCA is a question of law which requires this Court to determine whether they are State employees. See Hardin v. Phillips, 249 Ga. App. 541, 543 (1) (547 SE2d 565) (2001).

The GTCA definition of “State officer or employee” includes, in pertinent part,

an officer or employee of the [Sjtate, elected or appointed officials, law enforcement officers, and persons acting on behalf or in service of the [Sjtate in any official capacity, whether with or without compensation, but the term does not include an independent contractor doing business with the [Sjtate. . . . Except as otherwise provided for in this paragraph, the term shall not include a corporation whether for profit or not for profit, or any private firm, business proprietorship, company, trust, partnership, association, or other such private entity.

OCGA § 50-21-22 (7).

In the Campus Policemen Act, OCGA § 20-8-1 et seq., the legislature defines campus policemen as employees of educational facilities and vests campus policemen who have been certified as peace officers with “the same law enforcement powers, including the power of arrest, as a law enforcement officer of the local government with police jurisdiction over such campus.” OCGA § 20-8-2. That Act defines a “campus policeman” not as an employee who owes a duty solely to the private institution that employs him, but rather as an officer “whose duties include the enforcement of the laws of this [Sjtate; the preservation of public order; the protection of life and property; the prevention, detection, or investigation of crime; or any combination thereof.” OCGA § 20-8-1 (2).

Construing OCGA § 50-21-22 (7) with the Campus Policemen Act, OCGA § 20-8-1 et seq., demonstrates the General Assembly’s intent to include law enforcement officers employed by private colleges and universities within the definition of “State officer[s] and employee[s]” who are granted immunity under the GTCAbecause it imbues them with the power to do what is necessary to enforce the laws of this State and imposes upon them a duty to enforce State law and to investigate any violation thereof. When a campus policeman exercises his statutorily authorized “law enforcement powers” within his defined jurisdiction “[o]n the campus of an educational facility,” OCGA § 20-8-2, then necessarily, he is “acting on behalf or in service of the [Sjtate in [an] official capacity,” and hence, he is a State officer under OCGA § 50-21-22 (7).

In the present case, although the Defendant campus policemen were employed by ASC, the facts in the complaint do not state that they were acting in furtherance of ASC’s interests at the time of the investigation of the reported assault and the subsequent arrest of Hartley. The allegations in the complaint, taken as true, merely allege that the Defendants involved in this case were engaged in police functions involved in upholding the laws of the State and investigating an alleged crime. It follows, therefore, that in fulfilling their “law enforcement powers” granted by OCGA § 20-8-2, they were “acting on behalf or in service of the state in [an] official capacity,” and thus, they are “state officer[s]” under OCGA § 50-21-22 (7).

Further, “it is elementary that in all interpretations of statutes, the courts shall look diligently for the intention of the legislature and such intent shall be determined from a consideration of the entire statute.” (Punctuation and footnote omitted.) In the Interest of L. B., 319 Ga. App. 173, 177 (2) (735 SE2d 162) (2012). The appellee’s contention that ASC’s campus policemen do not fall within the statutory definition of “State officer or employee” because they are employed by ASC, a private entity, fails to take the entirety of the statute into consideration. The last sentence of OCGA § 50-21-22 (7) states:

Except as otherwise provided for in this paragraph, the term [“State officer or employee”] shall not include a corporation whether for profit or not for profit, or any private firm, business proprietorship, company, trust, partnership, association, or other such private entity.

(Emphasis supplied.) This language does not exclude employees of corporations or private entities, such as ASC, from the definition of “State employee or officer.” To so find would require us to ignore the language in the first part of the sentence that applies the private entity exclusion only “[e]xcept as otherwise provided for in this paragraph.” The first sentence of OCGA § 50-21-22 (7) clearly indicates that “law enforcement officers” and “persons acting on behalf or in service of the [S]tate in any official capacity” are not to be excluded, even if associated with such a private entity.

The trial court and the appellee rely upon The Corp. of Mercer Univ. v. Barrett & Farahany, LLP, 271 Ga. App. 501 (610 SE2d 138) (2005), for the assertion that the mere fact that campus police officers are given authority to perform certain functions under the Campus Policemen Act does not make them State officers or employees. However, this case is inapposite. In Mercer, this Court looked to the plain language of the Open Records Act, OCGA § 50-18-70 et seq., and held that the police department of Mercer University, a private institution, was not a “public agency” or “public office” and, therefore, was not required to comply with the provisions of the Georgia Open Records Act. Mercer, supra at 502-504 (1) (a). The Open Records Act defines a public “agency” as an entity that (1) is a political subdivision of the State, (2) is a city, county, regional or other authority established by law, or (3) receives a specified percentage of money from the State. See OCGA §§ 50-18-70 (b) (1); 50-14-1 (a) (1). It was undisputed that Mercer, as a private university, clearly did not fall within the statutory definition of a public “agency” subject to the Open Records Act. However, in contrast, in the present case, the Defendants as law enforcement officers and as employees working on behalf of or in service of the State clearly fall within the definition of “State official or employee” under the GTCA. Further, in direct response to this Court’s holding in Mercer, the legislature acted promptly to counteract this Court’s interpretation of the Open Records Act and enacted OCGA § 20-8-7 in 2006, which requires campus police departments, public or private, to make records related to the investigation of criminal conduct and crimes available for public inspection and copying. This legislation effectively reversed the Mercer decision and further strengthens the conclusion that the Defendants, as campus law enforcement officers, are acting on behalf of the State when they investigate crimes and uphold the laws of this State.

Further, the trial court and the appellee’s reliance upon Nichols v. Prather, 286 Ga. App. 889, 893 (1) (650 SE2d 380) (2007), in support of the contention that not every law enforcement officer, regardless of his employer, is a State officer is not applicable to the case at hand. The Nichols case held that sheriffs were not entitled to immunity under the GTCA because the GTCA specifically excludes “counties and other units of local government” from its definition of “State,” and the Georgia Constitution defines sheriffs as “county officers.” Id. at 893 (1). See OCGA § 50-21-22 (5); Ga. Const, of 1983, Art. IX, Sec. I, Par. III (a). In this case, there is no similar constitutional or statutory basis for the exclusion of campus law enforcement officers from the GTCA’s provision of immunity.

Construing the OCGA § 50-21-22 (7) definition of “State officer or employee” to include campus law enforcement officers acting to enforce and uphold the laws of this State, regardless of whether they are employed by a private or state college or university, serves legitimate public policy reasons as well. The rationale behind the statutory doctrine of qualified immunity is “to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.” (Footnote omitted.) Taylor v. Campbell, 320 Ga. App. 362, 363 (739 SE2d 801) (2013). Without immunity, law enforcement officers can be sued in their individual capacities for actions taken as part of their official duties, resulting in a reluctance to exercise the full extent of their authority for fear of retribution in the form of civil litigation. Campus law enforcement officers charged with enforcing the laws of this State should not face the risk of retribution for engaging in law enforcement activities simply because they are employed by a private educational institution. The dissent’s holding creates an incentive for private colleges and universities to disband their private police forces, which serve a function that would otherwise be the responsibility of state and local governments.

Based upon the above analysis, we find that the trial court erred in denying the Defendants’ motion to dismiss.

2. Agnes Scott contends that the trial court erred in denying ASC’s motion to dismiss Hartley’s claims for respondeat superior. We agree.

It is well established under Georgia law that a private employer is not responsible under respondeat superior for the tortious acts of its police officer employee if that police officer was performing public duties, not at the direction of the employer, while committing the tort in question. See Pounds v. Central of Ga. R. Co., 142 Ga. 415 (83 SE 96) (1914) (railroad company not vicariously liable for tort committed by police officer on its payroll because police officer was acting in furtherance of his duties as a policeman when committing the alleged tort, and not at the railroad’s direction); Touchton v. Bramble, 284 Ga. App. 164, 165-166 (1) (a) (643 SE2d 541) (2007) (amusement park not subject to liability in respondeat superior for actions of its employee, an off-duty police detective, who was investigating an incident at the park when the amusement park did not direct the investigation or control his actions during the investigation).

A motion to dismiss should “only be granted if the allegations of the complaint, construed most favorably to the plaintiff, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts.” (Citation omitted.) Thomas v. Lee, 286 Ga. 860, 861 (691 SE2d 845) (2010). Construing the pleadings in the light most favorable to the plaintiff, we note that the only language connecting the Defendants’ alleged tortious conduct to ASC is an allegation in the complaint that the Defendants were “employees of [ASC], acting within the line and scope of their authority, and in particular were acting as members of the Department of Public Safety of [ASC].” There is no indication in the complaint that ASC was involved in or directed their conduct in investigating the alleged assault or initiating the judicial process with respect to that claim. Accordingly, we find that the trial court erred in denying ASC’s motion to dismiss.

Judgment reversed.

Andrews, P. J., and Branch, J., concur. Boggs, J., concurs in judgment only. Miller, P. J., Phipps, P. J., and Doyle, P. J., dissent.

MILLER, Presiding Judge,

dissenting.

I respectfully dissent from Division 1 of the majority’s opinion because campus policemen who are employed by private colleges and universities do not fall within the statutory definition of a State employee under the Georgia Tort Claims Act (“GTCA”), OCGA § 50-21-20 et seq.

The Georgia Constitution [as amended in 1991] provides that sovereign immunity extends to the State and all of its departments and agencies, and that the State’s sovereign immunity can only be waived by a constitutional provision or an Act of the General Assembly that specifically provides for such waiver and the extent thereof. Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e).

(Citations, punctuation and footnote omitted.) Ga. Dept. of Community Health v. Data Inquiry, 313 Ga. App. 683, 685 (1) (722 SE2d 403) (2012). The GTCA was enacted under the authority of the 1991 constitutional amendment. “The legislative intent with respect to the state’s liability is set out in OCGA § 50-21-21 (a).” (Citations and punctuation omitted.) Hilson v. Dept. of Public Safety, 236 Ga. App. 638, 639-640 (512 SE2d 910) (1999). In that subsection,

the General Assembly stated its legislative intent to strike a balance between the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity and the need to limit the exposure of the state treasury to tort liability since in acting for the public good and in responding to the public need, state government must provide a broad range of services and perform a broad range of functions throughout the entire state, regardless of how much exposure to liability may be involved.

(Citation and punctuation omitted; emphasis supplied.) Ga. Forestry Comm. v. Canady, 280 Ga. 825, 826 (632 SE2d 105) (2006).

The GTCA provides that State officers or employees who commit torts while acting within the scope of their official duties or employment are not subject to lawsuit or liability for those acts. See OCGA § 50-21-25 (a). Campus policemen Gaetano Antinozzi, Gregory Scott and Henry Hope argue that they are entitled to immunity under the GTCA because they are law enforcement officers within the meaning of OCGA § 50-21-22 (7). The issue of whether the campus policemen were entitled to immunity under the GTCA is a question of law which requires this Court to determine whether they are State employees. See Hardin v. Phillips, 249 Ga. App. 541, 543 (1) (547 SE2d 565) (2001).

OCGA § 50-21-22 provides the following definitions:

(5) “State” means the State of Georgia and any of its offices, agencies, authorities, departments, commissions, boards, divisions, instrumentalities, and institutions, but does not include counties, municipalities, school districts ... and other local authorities.
(6) “State government entity” means a state office, agency, authority, department, commission, board, division, instrumentality, or institution.
(7) “State officer or employee” means an officer or employee of the state, elected or appointed officials, law enforcement officers, and persons acting on behalf or in service of the state in any official capacity, whether with or without compensation, but the term does not include an independent contractor doing business with the state. The term state officer or employee also includes any natural person who is a member of a board, commission, committee, task force, or similar body established to perform specific tasks or advisory functions, with or without compensation, for the state or a state government entity, and any natural person who is a volunteer participating as a volunteer, with or without compensation, in a structured volunteer program organized, controlled, and directed by a state government entity for the purposes of carrying out the functions of the state entity.... Except as otherwise provided for in this paragraph, the term shall not include a corporation whether for profit or not for profit, or any private firm, business proprietorship, company, trust, partnership, association, or other such private entity.

(Emphasis supplied.) OCGA § 50-21-22 (5)-(7). In construing this statute,

we apply the fundamental rules of statutory construction that require us to construe the statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage. At the same time, we must seek to effectuate the intent of the legislature.

(Citation and punctuation omitted.) Currid v. DeKalb State Court Probation Dept., 285 Ga. 184, 187 (674 SE2d 894) (2009).

The plain language of the GTCA excludes employees of corporations or private entities, such as Agnes Scott College (“ASC”), from the definition of State employee or officer. See OCGA § 50-21-22 (7); Summerlin v. Ga. Pines Community Svc. Bd., 286 Ga. 593, 595 (1) (690 SE2d 401) (2010). Moreover, this case does not involve exposure of the State treasury to tort liability. See Canady, supra, 280 Ga. at 826. Therefore, the campus policemen are not immune from suit under the GTCA. See Johnson v. Ga. Dept. of Human Resources, 278 Ga. 714, 717 (3) (606 SE2d 270) (2004) (holding that a corporate child-care facility and its employee did not fall within the statutory definition of an “employee” under the GTCA); compare Hardin, supra, 249 Ga. App. at 543-544 (1) (holding that individuals employed by a public college within the State university system are State employees as that term is defined in OCGA § 50-21-22 (7)). Nevertheless, the campus policemen argue that they have law enforcement powers within the meaning of the Campus Policemen Act, OCGA § 20-8-1 et seq.

This Court must construe the GTCA together with the Campus Policemen Act, and harmonize the two statutes if possible so as to give effect to legislative intent. See Ferdinand v. Bd. of Commrs. of Fulton County, 281 Ga. 643, 644 (641 SE2d 787) (2007). OCGA § 20-8-1 pertinently provides:

(2) “Campus policeman” means an employee of an educational facility whose duties include the enforcement of the laws of this state; the preservation of public order; the protection of life and property; the prevention, detection, or investigation of crime; or any combination thereof.

OCGA § 20-8-2 provides:

On the campus of an educational facility, a campus policeman employed by such educational facility who is certified in accordance with Code Section 20-8-3 and when authorized by the governing body or authority of such educational facility shall have the same law enforcement powers, including the power of arrest, as a law enforcement officer of the local government with police jurisdiction over such campus.

Campus policemen are not authorized to exercise law enforcement powers unless they are certified by the Georgia Peace Officer Standards and Training Council (hereinafter “POST certified”). See OCGA § 20-8-3.

As an initial matter, we note that the complaint is silent as to whether the campus policemen are POST certified as required by OCGA § 20-8-3. Nevertheless, even assuming that the campus policemen were properly certified, they were not State officers or employees within the meaning of the GTCA. Nothing in the Campus Policemen Act indicates that a campus policeman is considered to be a State employee. The mere fact that campus police officers are given authority to perform certain functions under the Campus Policemen Act does not make them State officers or employees. See The Corp. of Mercer Univ. v. Barrett & Farahany, LLP, 271 Ga. App. 501, 502-503 (1) (a) (610 SE2d 138) (2005) (holding, in the context of interpreting the Open Records Act, OCGA § 50-18-70 et seq., that campus police officers working for a private institution were not public officers or employees, even though they had law enforcement powers under the Campus Policemen Act). Furthermore, it is clear that not every law enforcement officer, regardless of his employer, is a State officer. See Nichols v. Prather, 286 Ga. App. 889, 893 (1) (650 SE2d 380) (2007) (holding that, under the GTCA, a sheriffs department was not a State government entity, and a county sheriff and his employees were not State officers or employees). Regardless of whether the campus policemen had law enforcement powers under the Campus Policemen Act, they were employees of a private entity, were not acting on behalf or in service of the State, and did not fall within the statutory definition of a State employee under OCGA § 50-21-22 (7). Thus, the trial court properly found that the campus policemen were not immune from suit under the GTCA.

I also dissent to the majority’s opinion as to Division 2 because Hartley could show that ASC is vicariously liable for the campus policemen’s actions if she presents evidence that they were acting within the scope and course of their employment for ASC.

The clearest case of vicarious liability ... is that of a master for harm caused by acts of his servant. Under the principle of respondeat superior, employers are generally jointly and severally liable along with the tortfeasor employee for the torts of employees committed within the scope of employment. . . .When an employee causes an injury to another, the test to determine if the employer is liable is whether the employee was acting within the scope of the employee’s employment and on the business of the employer at the time of the injury.

(Citations and punctuation omitted.) Chorey, Taylor & Feil, P.C. v. Clark, 273 Ga. 143, 144 (539 SE2d 139) (2000). The question of whether an employee is acting within the scope of his employment, and the scope of his employer’s business at the time of an injury to another is a jury question, except in plain and indisputable cases. See Howard v. J. H. Harvey Co., 239 Ga. App. 677, 681 (5) (521 SE2d 691) (1999).

Here, the complaint alleged that the campus policemen were acting within the scope and course of their employment. Specifically, Hartley alleged that the campus policemen were ASC employees, acting within the line and scope of their employment, when they investigated the reported assault and then initiated proceedings to secure Hartley’s arrest. Nevertheless, Defendants argue that ASC incurred no vicarious liability because the campus policemen were engaged in law enforcement activities that constituted a public service, not acting in furtherance of ASC’s business. Defendants’ argument is unavailing, because they have not shown that Hartley could not possibly present evidence that the campus policemen were ASC’s employees acting within the scope of their employment. Construing the allegations in the light most favorable to Hartley, a jury could find that ASC is vicariously liable for the campus policemen’s actions if Hartley proves that they were acting within the scope of their employment. See Smith v. Germania of America, 249 Ga. App. 587, 589 (549 SE2d 423) (2001) (holding that the owner and manager of an apartment complex could be vicariously liable for the actions of three police officers if the plaintiffs proved that the officers were employees acting within the scope of their employment).

Decided March 29, 2013

Bendin, Sumrall & Ladner, Brian D. Trulock, for appellants.

Bell & Mulholland, Lloyd N. Bell, for appellee.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Robert P. Marcovitch, Jenna Colvin, amici curiae.

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

        See State of Ga. v. Davis, 246 Ga. 761, 761-762(1) (272 SE2d 721) (1980) (the meaning and effect of statutes will be determined in reference to other statutes); Plantation Pipe Line Co. v. City of Bremen, 227 Ga. 1, 9 (3) (178 SE2d 868) (1970) (the meaning and effect of a statute are “to be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and decisions of the courts”) (citation omitted).

       The pertinent allegations in the complaint state that an ASC student falsely claimed to two ASC police officers that she had been raped in her dorm room, the officers “took” those claims “without a reasonable degree of skepticism or investigation,” and “[r]ather than investigate the veracity of . . . [Appellee’s] false allegations . . . [one of the ASC officers] immediately proceeded to obtain criminal arrest warrants against” Hartley, and once the warrants were obtained, the ASC officers “immediately contacted the Knoxville Police Department and initiated proceedings to cause the arrest of [Hartley].”

       We do not reach the issue and do not hold that law enforcement officers of private colleges and universities are entitled to immunity if their actions were solely on behalf of their employer and not engaged in upholding the laws of the State.

       The Supreme Court of Georgia’s decision in Summerlin, supra, 286 Ga. at 593, does not support the campus policemen’s argument that they are entitled to immunity under the GTCA, because that case involved health care workers who were working as borrowed servants for a State agency. Thus, the health care workers were working on behalf or in service of the State as set forth in OCGA § 50-21-22 (7).

       OCGA § 20-8-1 also provides:
      (1) “Campus” means the grounds and buildings owned or occupied by a college or university or the grounds and buildings of a school or training facility operated by or under the authority of the State Board of Education. The term “campus” shall also include any public or private property within 500 yards of the property of an educational facility and one-quarter mile of any public street or public sidewalk connecting different buildings of the same educational facility when the property or buildings of the educational facility are located within any county in this state having a population of 400,000 or more according to the United States decennial census of 1970 or any future such census.
      (3) “College or university” means an accredited, nonproprietary, public or private educational institution of higher learning located in this state.
      (4) “Educational facility’ means a college or university or a school or training facility operated by or under the authority of the State Board of Education.

       To the extent Defendants rely upon an opinion from the Office of the Attorney General providing that campus policemen are “law enforcement officers” under Georgia law, that reliance is misplaced. That opinion applies to the jurisdiction and authority of university system law enforcement officers, and the university system is statutorily defined in OCGA § 20-3-50 as the University of Georgia and its branches, not private institutions like ASC. See 1993 Op. Atty. Gen. 57.


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A12A2088.
    In the Interest of J. J. S., a child.
    (741 SE2d 207)
   PHIPPS, Presiding Judge.

A juvenile court terminated a mother’s parental rights with respect to her child, J. J. S., who was 12 years old at the time of the termination hearing. We granted the mother’s application for discretionary review. The mother contends that the juvenile court erred in terminating her parental rights because, concerning whether continued deprivation would cause or would be likely to cause serious physical, mental, emotional, or moral harm to J. J. S., the evidence was insufficient. We agree and reverse.

On appeal from an order terminating an individual’s parental rights, we do not determine witness credibility or weigh the evidence. We instead view the evidence in the light most favorable to the juvenile court’s order and determine whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights should have been terminated.

So viewed, the evidence showed that in January 2009, the mother was arrested for alleged acts of misconduct toward her children, including J. J. S. and two siblings. All of the children were placed in protective custody. On October 13, 2009, the court entered an order which stated, among other things, that the Georgia Department of Human Resources Division of Family and Children Services (DFCS) had filed a motion to return custody of the children back to the mother, and that the court was terminating its jurisdiction and returning the children, including J. J. S., back to the mother, who, the court found, had substantially completed a case plan designed to reunite her with her children.

In February 2010, police received a report of genital mutilation, indicating that a part of the sexual organ of tifie mother’s youngest child (not J. J. S.) had been removed, and they arrested the mother on March 10, 2010. DFCS again took custody of the children and implemented a reunification case plan. The mother remained incarcerated after the March 2010 arrest. And on May 3, 2011, the state indicted the mother for 24 counts of cruelty to children for various acts allegedly committed against her children; the indicted charges were related to the January 2009 arrest. On June 6,2011, the mother entered a plea of guilty pursuant to North Carolina v. Alford, to six of the counts.

Specifically, concerning J. J. S., the mother pleaded guilty to “choking [J. J. S.] and covering [the child]’s mouth with her hand so she couldn’t breathe,” and to “making [J. J. S.] stand in a corner for an extended period of time with her arms in the air.” As to the siblings, the mother pleaded guilty to two counts of scaring them with a mask, making one of them stand in a corner for an extended period of time with his arms in the air, and making another one eat hot peppers. The mother was sentenced to a total of fifteen years, with four years to be served in confinement and the balance on probation, with credit for time served since March 10, 2010. At some point, the state dismissed against the mother criminal charges in connection with the February 2010 genital mutilation allegations.

On June 17, 2011, DFCS filed a petition to terminate the mother’s parental rights to J. J. S. DFCS alleged that it had temporary custody of J. J. S. by virtue of prior unappealed orders of the court, and that J. J. S. was residing at a group home. Particularly, DFCS alleged:

[J. J. S.] remained] deprived due to the mother’s incarceration resulting from her conviction of six counts of Cruelty to Children in the Second Degree and her history of instability, neglect and abuse. The mother has been incarcerated since March 10, 2010, and is sentenced to serve four years, with credit to be given for the time she has already served. Due to this incarceration, the mother has not been able to provide the basic means of support and parental care of this child, and her incarceration has been a negative effect on the relationship between the mother and her daughter.

A hearing on the termination petition held on September 20, 2011, and continued on October 10, 2011, showed the following. J. J. S. and her siblings had, throughout the years, been removed from the mother’s care on several occasions and placed in the custody of DFCS. The mother’s criminal history included a 2003 guilty plea to a charge of criminal attempt to commit theft by taking, a 2004 entry of a protective order against the mother for stalking, a 2010 guilty plea to a charge of battery, and the 2011 guilty plea to the child cruelty charges. On one occasion, the mother had threatened to harm police officers if they did not leave her property; the officers had approached the mother’s home to investigate child medical neglect allegations, that were later found to be unsubstantiated.

The evidence further showed that J. J. S. had significant behavioral issues. After the mother’s arrest in March 2010, DFCS had found a relative placement for the mother’s other children, but no suitable relative was willing to take custody of J. J. S. The child had been disruptive in several foster homes; she was placed in one therapeutic foster home, and she stole items and set several fires in that home. Her therapist reported that J. J. S. had “[v]erbal aggression towards peers and adults, [and] explosive temper outbursts.” At the time of the termination hearing, the child resided in a group home, suited to address her behavioral needs. J. J. S. has consistently informed caseworkers, therapists, and the juvenile court judge, that she does not want to be adopted and desires to be with her mother. Two therapists testified that, at this point, J. J. S. would likely sabotage any adoption effort. The child’s current DFCS case manager testified that currently, discussions about adoption were “on the back burner. We’re trying to get her behavior under control.” At the time of the termination hearing, no potential adoptive placement had been found, and the experts could not predict when J. J. S. might become adoptable. One of the therapists testified: “Good, bad or indifferent, [J. J. S. was] very bonded with her mother.”

The mother contends that the juvenile court erred in terminating her parental rights because, concerning whether continued deprivation would cause or would be likely to cause serious physical, mental, emotional, or moral harm to J. J. S., the evidence was insufficient. We agree.

In considering the termination of parental rights, the court shall first determine whether there is present clear and convincing evidence of parental misconduct or inability. If there is, the court shall then consider whether termination of parental rights is in the best interest of the child. The court determines parental misconduct or inability by finding that (1) the child is a deprived child (defined in OCGA § 15-11-2 to mean a child who is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals); (2) the lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; (3) such cause of deprivation is likely to continue or will not likely be remedied; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.

In its order terminating the mother’s parental rights, the juvenile court took into consideration J. J. S.’s wishes (to not be adopted, and to be reunited with her mother), and the bond between J. J. S. and the mother. The court made no specific factual findings as to whether the fourth factor listed above had been met, but pertinently ruled as follows:

In determining the said child[ ] to be without proper parental care and control the Court considered and the evidence showed clearly and convincingly, that [the mother] has a history of criminal involvement and subsequent arrests and a history of child protective services involvement; that she is presently incarcerated following her best interest plea to cruelty to children; the present incarceration, viewed cumulatively with her criminal history, thereby justifies termination as set out in OCGA § 15-11-94 (b) (4) (A).

This court has held:

The same circumstances that authorize a juvenile court’s conclusion that a child is deprived due to parental inability or lack of proper parental control, and that the deprivation is likely to continue, can provide support for the determination that deprivation will or is likely to cause serious physical, mental, emotional, or moral harm to the child.

Here, the mother does not challenge the juvenile court’s finding that J. J. S. was deprived, that the mother is the cause of J. J. S.’s status as deprived, and that the cause of deprivation is likely to continue or will not likely be remedied. But “the facts [must] support the finding. In other words, it is not automatically true that a finding that deprivation is likely to continue will support a finding that continued deprivation will harm the child. Otherwise, the fourth part of the test would have no meaning.”

[A]n order terminating parental rights must contain explicit findings supporting the conclusions that by reason of the deprivation the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm.... The trial judge is to ascertain the facts and to state not only the end result of that inquiry but the process by which it was reached----Without... specific factual findings on the issue of the likelihood of serious harm from continued deprivation, we have no basis to evaluate whether the juvenile court properly determined that clear and convincing evidence supported the court’s conclusion on that issue.

The court made no finding as to whether J. J. S. was, at the time of the hearing, suffering due to her placement or whether without a permanent placement J. J. S. would suffer serious harm. One therapist opined: “I think at this moment, it would probably be a good idea for [J. J. S.] to stay in a group home and work through some of the behaviors that she has.” Moreover, there was no testimony that J. J. S. was likely to suffer serious harm if parental rights were not terminated. There was no testimony regarding the effect on J. J. S. of her mother’s incarceration or the likely effects if parental rights were not terminated. Another therapist testified that J. J. S. had handled “fairly well” learning that her mother had been sentenced to four years in prison. None of the witnesses testified that J. J. S.’s relationship with the mother was, at the time of the hearing, harmful to J. J. S. The evidence showed that although the mother, at the time of the termination hearing, was incarcerated for committing child cruelty crimes, she had, prior to her incarceration, completed a DFCS case plan regarding those acts of child cruelty, and the juvenile court had returned custody of J. J. S. to the mother.

Here, the mother’s incarceration limited her exposure to J. J. S. And the evidence showed, without dispute, that as of the time of the termination hearing, DFCS had not located an adoptive placement for J. J. S., the child was not then adoptable because of behavioral problems, and the experts could not predict when J. J. S. might become adoptable. In other words, there was no evidence that terminating the mother’s parental rights would affect her current placement. And although the juvenile court found that “sometimes termination of parental rights can bring closure and help the child move toward being more open to adoption,” it noted that J. J. S.’s therapist “did not have an opinion regarding that scenario in this case.”

[Tjhere is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously.. .. Accordingly, compelling facts are required to terminate parental rights.

“[Here], we cannot say that the evidence authorized the trial court to find by clear and convincing evidence that [J. J. S.] was likely to suffer serious physical, mental, moral or emotional harm. Therefore, the order terminating the [mother]’s parental rights must be reversed.”

Decided March 29, 2013.

Justin B. Grubbs, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Penny Hannah, Assistant Attorney General, Hunnicutt & Taylor, James T. Hunnicutt, for appellee.

Judgment reversed.

Dillard, J., concurs. Ellington, C. J., concurs in judgment only.

        In the Interest of G. W. R., 270 Ga. App. 194 (606 SE2d 281) (2004) (citation and punctuation omitted).

       The mother, at the time of this arrest, was not incarcerated based on allegations from the January 2009 arrest.

       400 U. S. 25, 37 (91 SC 160, 27 LE2d 162) (1970) (“An individual accused of [a] crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”).

       A nolle prosequi order was entered on the remaining counts.

       OCGA § 15-11-94 (a).

       Id.

       OCGA §§ 15-11-94 (b) (4) (A) (i); 15-11-2 (8).

       OCGA § 15-11-94 (b) (4) (A) (ii).

       OCGA § 15-11-94 (b) (4) (A) (iii).

       OCGA § 15-11-94 (b) (4) (A) (iv).

        In the Interest of G. W. R., supra at 200 (4) (citation omitted).

        In the Interest of J. T. W., 270 Ga. App. 26, 37 (2) (d) (606 SE2d 59) (2004) (footnote omitted).

        In the Interest of K. L. M., 316 Ga. App. 246, 252-253 (d) (729 SE2d 452) (2012) (citations and punctuation omitted).

       See In the Interest of D. F., 251 Ga. App. 859, 862 (555 SE2d 225) (2001).

       See id.; In the Interest of K. J., 226 Ga. App. 303, 308 (2) (486 SE2d 899) (1997).

       See In the Interest of K. J., supra.

       See id.; In the Interest of D. F., supra.

       See generally In the Interest of D. F., supra.

        In the Interest of K. J., supra at 306 (1) (citation and punctuation omitted).

       Id. at 309 (2) (b); see In the Interest of J. M., 251 Ga. App. 380, 383 (4) (554 SE2d 533) (2001); In the Interest of D. F., supra.


author: McMillian, Judge.

text:
    A12A2155.
    THE STATE v. GAY.
    (741 SE2d 217)
   McMillian, Judge.

The trial court granted Fredrick Gay’s motion to dismiss the indictment based on a violation of Gay’s constitutional right to a speedy trial. On appeal, the State claims that the trial court improperly applied the balancing test set out by the United States Supreme Court in Barker v. Wingo, 407 U. S. 514, 530 (IV) (92 SC 2182, 33 LE2d 101) (1972). For the reasons set forth below, we agree and therefore vacate the trial court’s order and remand with direction.

Gay was indicted on September 9, 2008 for an armed robbery alleged to have occurred in Fulton County on April 20,2004. The case was placed on the administrative dead docket by order entered March 25,2009. On August 7,2009, Gay, acting pro se, filed a demand under OCGA § 17-7-170 for a speedy trial. The case was removed from the administrative dead docket by order entered September 11, 2009, and, on October 12, 2009, the trial court denied Gay’s statutory speedy trial demand as untimely. Following appointment of defense counsel, Gay was arraigned on or about November 9, 2009. On September 11, 2011, Gay filed a motion to dismiss the indictment for violation of his right to a speedy trial under the state and federal constitutions. See Ga. Const. of 1983, Art. I, Sec. I, Par. XI (a); U. S. Const., Amend. VI. The matter came before the trial court for a hearing on March 13, 2012, and the trial court granted Gay’s motion to dismiss in an order entered March 15, 2012.

The evidence presented at the motion hearing showed, among other things, that a warrant for Gay’s arrest was issued on April 30, 2004. Gay was not served with the arrest warrant, however, and he did not learn of the indictment until April 2009. Meanwhile, Gay was convicted on an unrelated robbery charge in 2004 and was sentenced to eight years in prison. Gay testified that he was “supposed” to have been paroled in 2008, but the issuance of the indictment in this case delayed his parole date, and he was ultimately not released from the Department of Corrections until July 29, 2011, when he was transferred to the Fulton County jail.

1. The template for deciding federal and state constitutional speedy trial claims is set out by the United States Supreme Court in Barker and in Doggett v. United States, 505 U. S. 647 (112 SC 2686, 120 LE2d 520) (1992). See Ruffin v. State, 284 Ga. 52, 55 (2) (663 SE2d 189) (2008). The trial court’s initial inquiry is whether the delay from the accused’s arrest, indictment, or other formal accusation to the trial is so long as to be considered “presumptively prejudicial.” State v. Pickett, 288 Ga. 674, 675 (2) (a) (706 SE2d 561) (2011). If there has not been a trial, “the delay should be calculated from the date of arrest or other formal accusation to the date on which a defendant’s speedy trial motion was granted or denied.” State v. Porter, 288 Ga. 524, 526 (2) (b) (705 SE2d 636) (2011). For serious crimes lacking unusual complexities, “one year generally marks the point at which expected deliberateness in the prosecution of a criminal matter turns into presumptively prejudicial delay.” (Citation omitted.) Ruffin, 284 Ga. at 55 (2) (a).

If the delay is not presumptively prejudicial, the speedy trial claim fails at the threshold. Ruffin, 284 Ga. at 55 (2) (a). If the delay is presumptively prejudicial, the trial court must then consider “whether [the] delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay’s result.” Doggett, 505 U. S. at 651 (II); see also Barker, 407 U. S. at 530-533 (IV); Pickett, 288 Ga. at 675 (2) (a).

The trial court is afforded “substantial discretion in applying the Barker balancing test, and its ultimate judgment is reviewed on appeal only for abuse of that discretion.” Porter, 288 Ga. at 533 (2) (e). As the appellate court,

we must accept the factual findings of the trial court unless they are clearly erroneous, and we must accept the ultimate conclusion of the trial court unless it amounts to an abuse of discretion, even though we might have reached a different conclusion were the issue committed to our discretion.

(Citation omitted.) State v. Buckner, 292 Ga. 390, 391 (738 SE2d 65) (2013). Nevertheless, “where the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed the trial court’s ultimate ruling is diminished.” (Citation and punctuation omitted.) Porter, 288 Ga. at 533 (2) (e).

2. The State does not dispute that the length of the delay in this case, which was more than one year, raised a presumption of prejudice, nor does it contend that the trial court erred in proceeding to the second stage of the speedy trial analysis. See Ruffin, 284 Ga. at 55 (2).

3. As the delay in bringing Gay to trial raises a presumption of prejudice, we turn to whether the trial court abused its discretion in weighing the Barker factors and finding that Gay was denied his constitutional right to a speedy trial.

(a) Length of the Delay. In analyzing this factor, the trial court duly found that the relevant time period in a speedy trial claim begins with the earlier of the date of indictment or the date of arrest. See Williams v. State, 277 Ga. 598, 599 (1) (a) (592 SE2d 848) (2004). It noted that the earlier date in this case was September 9, 2008, the date of indictment, such that Gay had been waiting three-and-a-half years to be brought to trial. The trial court found, however, that this case was unusual and distinguishable in that the State was aware of Gay’s whereabouts in April and May 2004. The trial court further noted that the State indicted a co-perpetrator of the crime, Albert Huckaby, and tried and convicted Huckaby in 2005 and 2006, before Gay was ever indicted. Accordingly, the trial court wrote, the length of the delay “arguably” runs from May 2004. The trial court then found that the length of the delay to be seven years and ten months, which is so long that it weighs heavily against the State, “however calculated.”

The State argues that the trial court erred in finding the length of delay to include the four years from the date of the offense until the date of indictment. As the United States Supreme Court has said, the “right of the accused to a speedy trial has no application beyond the confines of a formal criminal prosecution [and is] triggered by arrest, indictment, or other official accusation____” Doggett, 505 U. S. at 655 (III) (A). Delays before arrest or indictment are subject to due process, and not speedy trial, analysis. Bunn v. State, 284 Ga. 410, 412 (2) (667 SE2d 605) (2008); Wooten v. State, 262 Ga. 876, 878 (2) (426 SE2d 852) (1993); Haisman v. State, 242 Ga. 896, 898 (2) (252 SE2d 397) (1979). Thus, the Sixth Amendment provides no guarantee of a right to a speedy arrest, although inordinate delay between the time a crime is committed and the time a defendant is arrested or indicted may violate due process under the Fifth and Fourteenth Amendments. Wooten, 262 Ga. at 878 (2). See also Hudson v. State, 277 Ga. 581, 582-583 (2) (591 SE2d 807) (2004) (delay between when the warrant was issued for his arrest and when the arrest warrant was served did not implicate appellant’s speedy trial rights).

In light of the foregoing, the trial court erred to the extent it found the length of the delay was seven years and ten months for purposes of Gay’s contention that the State had violated his Sixth Amendment right to a speedy trial. Although some language in the trial court’s order suggests that this finding was in the nature of an alternate holding or a proposed alteration from the established rule, the balance of the trial court’s order demonstrates that it considered the length of the delay to include the delay before arrest or indictment. Accordingly, we find that the trial court erred in its analysis of this factor.

(b) Reasons for the Delay. This factor is an assessment of “the reason for the delay and whether this is attributable to the defendant or the state.” (Citation omitted.) State v. Johnson, 274 Ga. 511, 512 (555 SE2d 710) (2001). And

[w]hile a deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government, an unintentional delay, such as that caused by the mere negligence of the prosecuting attorneys or the overcrowded docket of the trial court, should be weighted less heavily.

(Citation and punctuation omitted.) Buckner, 292 Ga. at 394 (3) (b).

Here, the trial court found that Gay had no culpability in the length of the delay, while the State was completely at fault. Further, the trial court found that the State’s delay from 2004 until the indictment in 2008 “amounts to bad faith” because although the State and law enforcement knew of Gay’s whereabouts, “no one did anything.” But as we noted above, the State had neither arrested nor indicted Gay from 2004 until September 2008, and so Gay’s constitutional right to a speedy trial had not attached. The State’s inaction during this period should not have been considered as a reason for the delay. See, e.g., Moore v. State, 278 Ga. 473, 473-474 (1) (604 SE2d 139) (2004).

Moreover, the trial court compounded this error by finding that the State acted in bad faith by failing to indict during this time period. A finding of bad faith necessarily weighed more heavily against the State than mere negligence, which is considered to be relatively benign in the balancing process. See, e.g., Hassel v. State, 284 Ga. 861, 863 (672 SE2d 627) (2009) (State’s conduct was negligent rather than deliberate or as a result of bad faith); Frazier v. State, 277 Ga. App. 881, 882 (627 SE2d 894) (2006) (no evidence that the delay was the result of bad faith). And although the trial court also attributed the post-indictment delay to the State, it did not expressly find that the State acted in bad faith during that period. By miscalculating the period of the delay and assigning bad faith to the State’s preindictment inaction, the trial court weighed this factor more heavily against the State than was authorized by the evidence.

(c) Assertion of the Right to Speedy Trial. Although an accused is not required to ask for a speedy trial at the first available opportunity, “the accused bears some responsibility to invoke the speedy trial right and put the government on notice that he or she, unlike so many other criminal defendants, would prefer to be tried as soon as possible.” Ruffin, 284 Ga. at 62 (2) (b) (iii) (663 SE2d 189) (2008). “The relevant question for purposes of the third [Barker] factor is whether the accused has asserted the right to a speedy trial in due course.” (Citation and punctuation omitted.) Id. at 63.

The trial court found that Gay “clearly and timely asserted his right to a speedy trial.” Gay filed a motion for a statutory speedy trial on August 7,2009, before he had been appointed counsel. SeeOCGA § 17-7-170. Although the trial court ultimately concluded that the motion was not valid because it was not filed with in the correct term of court, the evidence showed that Gay did not learn about the charges in this case until April 2009, and he asked for a speedy trial shortly thereafter. Thus, the trial court found, Gay “demonstrated his desire to assert his right as soon as he became aware of the charges.” As the trial court also noted, Gay’s current counsel later filed the motion to dismiss for violation of Gay’s Sixth Amendment right to a speedy trial on September 21, 2011.

Gay’s assertion of his constitutional right to a speedy trial occurred over two years after he became aware of the indictment, a delay which would normally be required to be weighed against him, if not heavily so. See Brown v. State, 287 Ga. 892, 895 (1) (c), 896 (2) (c) (700 SE2d 407) (2010) (co-defendants’ respective two- and three-year delays in asserting right to speedy trial weighed heavily against them). And a defendant’s assertion of the statutory right to a speedy trial is not equivalent to the assertion of a constitutional speedy trial claim. See Torres v. State, 270 Ga. 79, 80 (2) (508 SE2d 171) (1998) (although defendant “file[d] a speedy trial demand, it was based on state statutory grounds rather than the constitutional ground raised in this appeal and asserted for the first time in his motion for acquittal”). Nevertheless, a trial court may accept the assertion of the statutory right as providing some notice to the State and militating in the defendant’s favor for purposes of the Barker analysis. See Redd v. State, 261 Ga. 300, 302 (404 SE2d 264) (1991); Robinson v. State, 298 Ga. App. 164, 167-168 (1) (b) (679 SE2d 383) (2009). Thus a defendant’s statutory speedy trial demand followed by the assertion of the constitutional right to a speedy trial in a motion for acquittal may weigh “slightly against the State.” Torres, 270 Ga. at 80 (2). Compare State v. Reimers, 310 Ga. App. 887, 889-890 (714 SE2d 417) (2011) (considering delay in asserting constitutional demand for a speedy trial to be two years, notwithstanding assertion of speedy trial rights several months earlier, and finding that the trial court erred in failing to weigh the delay to some extent against the defendant).

In this case, the trial court erred by failing to assign a specific weight to this factor based on the facts and circumstances of this case. “[T]hat exercise of discretion is committed to the trial court, not the appellate courts.” Pickett, 288 Ga. at 677 (2) (c) (3).

(d) Prejudice to the Defendant. Prejudice is “assessed in the light of the interests of defendants which the speedy trial right was designed to protect, namely to prevent oppressive pretrial incarceration, to minimize anxiety and concern of the accused, and to limit the possibility that the defense will be impaired.” Buckner, 292 Ga. at 398 (3) (d). The trial court found that Gay established each of these factors. For purposes of this appeal, the State makes no relevant argument that the trial court erred in finding that Gay was prejudiced by oppressive pretrial incarceration and by anxiety and concern, and so we will accept the trial court’s findings and conclusions as they relate to these two factors.

Notwithstanding the trial court’s findings as to the prejudice caused by Gay’s oppressive pretrial incarceration and anxiety, the most serious form of prejudice associated with an unreasonable delay before trial is the possibility that the accused’s defense will be impaired “because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Barker, 407 U. S. at 532 (IV). Here, the trial court noted Gay’s testimony that his sister had recently passed away and would have been an alibi witness for him at trial. The trial court then found that “[t]he death of this witness caused a significant and substantial impairment to the Defendant’s case.” We cannot conclude that this finding is supported by any evidence.

Although Gay testified that his sister would have been an alibi witness at his trial, when asked what his sister could have testified to, Gay responded that she could have testified that he did yard work, that “at that time I was doing my mother’s yard work every year in the month of April,” and that the “whole month of April I was at my mother’s house.” According to the indictment, Gay robbed a man in Fulton County on April 20, 2004. Gay testified that his mother’s house is in Decatur and within the metropolitan Atlanta area. Thus, Gay’s testimony did not show that his sister was a witness to the alleged offense or that his sister could provide an alibi in that he was with her at the time of the robbery, nor that, because his sister would have testified that he was at his mother’s house in Decatur during the month of April, it might be reasonably inferred that he could not have committed the alleged crime. “Generally, in order for a defendant to carry his burden of showing prejudice due to the unavailability of a witness, he must show that the missing witness could supply material evidence for the defense.” (Citations omitted.) Torres, 270 Ga. at 80-81 (2). Gay failed to show that his sister would have been a material witness, and the trial court erred in finding the death of his sister during the pendency of the trial substantially impaired Gay’s defense.

Decided March 29, 2013.

Paul L. Howard, Jr., District Attorney, Joshua D. Morrison, Assistant District Attorney, for appellant.

Jennifer S. Yoxall, Alixe E. Steinmetz, for appellee.

(e) Balancing the factors. After reviewing the four Barker factors, the trial court found that Gay “has met the burden on all factors and prongs of analysis,” and accordingly granted Gay’s motion to dismiss the indictment. Atrial court exercises substantial judgment in applying the Barker balancing test; however,

[i]f the trial court significantly misapplies the law or clearly errs in a material factual finding, the trial court’s exercise of discretion can be affirmed only if the appellate court can conclude that, had the trial court used the correct facts and legal analysis, it would have had no discretion to reach a different judgment.

(Citation omitted.) Pickett, 288 Ga. at 679 (2) (d). We cannot conclude that had the trial court not miscalculated the length of the delay, not improperly considered the State’s pre-indictment, pre-arrest inaction for purposes of evaluating the reasons for the delay, not failed to weigh Gay’s assertions of the right to speedy trial, and not erred in finding that Gay’s defense was substantially impaired by the death of his sister, the trial court necessarily would have ruled that Gay’s constitutional right to a speedy trial was violated. Accordingly, the trial court’s order must be vacated and the case remanded “for the trial court to exercise its discretion again using properly supported factual findings and the correct legal analysis, reflected in an adequate written order.” (Citations omitted.) Porter, 288 Ga. at 534 (2) (e).

Judgment vacated and case remanded with direction.

Barnes, P. J., and McFadden, J., concur.

       In addition to his “Motion to Dismiss Indictment Re Speedy Trial,” Gay filed a separate ‘Motion to Dismiss/Due Process Violation” in which he alleged that the inordinate delay between the date of the offenses and his arrest violated his due process rights. “To find a due process violation where a delay precedes arrest and indictment, courts must find 1) that the delay caused actual prejudice to the defense, and 2) that the delay was the product of deliberate action by the prosecution designed to gain a tactical advantage.” Wooten, 262 Ga. at 878 (2). The trial court’s order addressed the speedy trial motion only and applied the Barker balancing test rather than the foregoing test for ascertaining a violation of Gay’s right to due process.

       The trial court further found that the State made no attempt to locate Gay after indicting him, causing Gay to forfeit his speedy trial rights, and then delayed the trial of the case by failing to timely file discovery in accordance with a case management order.

       Gay does not contend that he raised the issue of his constitutional right to a speedy trial in the pro se motions filed in August 2009.

       Gay testified that upon his release from custody of the Department of Corrections he was taken to the Fulton County jail, where he had been confined for seven months. According to Gay, while confined in the jail, he developed scurvy because he was not provided with a proper diet, and he experienced back and other pains for which he received no relief. His prescription eyeglasses were taken and not replaced, and he suffered headaches as a result. Gay was confined on a maximum security floor and was subjected to threats by alleged gang members. He also suffered mentally because he was not released in time to be with his sister before she died of cancer. Gay also attributed a delay in parole from his confinement for his previous conviction to issuance of the indictment in this case. The trial court apparently accepted Gay’s testimony and entered its findings consistent therewith.

       Fulton County is also within metropolitan Atlanta. See, e.g., Wiliams v. State, 295 Ga. App. 249, 250 (1) (671 SE2d 268) (2008).

       During cross-examination Gay was afforded an opportunity to agree that his sister would have testified that “that night [he was] at [his] mother’s house working on her lawn,” but he responded only that “that whole month of April I was at my mother’s house.”


author: Phipps, Presiding Judge.

text:
    A12A2345.
    METRO ATLANTA TASK FORCE FOR THE HOMELESS, INC. v. PREMIUM FUNDING SOLUTIONS, LLC. UNITED WAY OF METROPOLITAN ATLANTA, INC. v. PREMIUM FUNDING SOLUTIONS, LLC.
    A12A2346.
    (741 SE2d 225)
   Phipps, Presiding Judge.

We granted the application of Metro Atlanta Task Force for the Homeless, Inc. (“Task Force”) for interlocutory review of the trial court’s February 9, 2012 order granting a writ of possession to Premium Funding Solutions, LLC (“PFS”). United Way of Metropolitan Atlanta, Inc. filed a cross-appeal from the same order. For the reasons that follow, we reverse the court’s judgment in Case No. A12A2345. Because the issues raised in Case No. A12A2346 are rendered moot, that appeal is dismissed.

Case No. A12A2345

The Task Force operates a homeless shelter in Atlanta. In May 2010, Ichthus Community Trust filed an action in superior court for temporary and permanent injunctive relief against the Task Force, pertinently alleging that Ichthus owned a security interest in and had foreclosed on the property occupied by the shelter and that the Task Force was wrongfully occupying and denying it access to the property. Ichthus sought in its action access to and the removal of the Task Force from the property. Ichthus also filed a dispossessory action in magistrate court against the Task Force, but in June 2010, that action was stayed, transferred and consolidated with the injunction action, with Ichthus reserving the right to move forward with the dispossessory claim and the Task Force having the right to respond to that claim. In November 2010, Ichthus dismissed the dispossessory action without prejudice, stating that it had been consolidated with the superior court action.

The Task Force thereafter filed an action against multiple defendants, including PFS (to whom Ichthus had transferred title to the property in February 2011). The Task Force asserted therein claims for, inter alia, quiet title, injunctive relief, and damages.

In November 2011, the superior court entered what was titled “Order on Discovery and Other Matters.” In it, the court granted a discovery motion and directed the parties to appear on December 16, 2011 for an evidentiary hearing on several issues (among them, the state of the facility and the issue of irreparable harm if the facility was closed and the dispossessory was allowed to proceed). On December 7, 2011, the court issued an order continuing “the [December 16] hearing on the dispossessory action and other matters” until February 3, 2012. In this order, the court advised that it “will entertain evidence” regarding issues of irreparable harm, adequate remedies at law, and conditions and services at the facility. At the February 3, 2012 hearing, the court heard argument on various matters, but denied the Task Force’s requests to present evidence.

On February 9, 2012, the court entered an order granting a writ of possession to PFS. In the order, the court directed the Task Force, its officers and directors, to vacate the facility by 12:00 p.m. on February 15, 2012, and directed the sheriff to effectuate the removal. The order provided that the homeless men were “entitled to remain at the Property subject to the transition plans of the United Way of Metropolitan Atlanta” (although United Way was not a party to the actions), and that PFS would make

arrangements with the United Way for the United Way or its designee(s) to manage and operate the Property as a homeless shelter consistent with the terms of this Order through August 31, 2012, or sooner if the current homeless population ... has been transitioned out of the Property and to other facilities prior to August 31, 2012.

Further, the order directed United Way (and others) to pay a court-appointed monitor to report the progress in the case.

1. The Task Force contends that the court erred in granting a writ of possession to PFS because, inter alia, the court failed to follow the procedures required for a dispossessory action. We agree.

“The exclusive method whereby a landlord may evict a tenant is through a properly instituted dispossessory action filed pursuant to OCGA § 44-7-50 et seq.” The statutory procedures for dispossessing a tenant must be strictly construed and observed. Our review of the trial court’s ruling on a legal question is “plain legal error.”

In this case, the court did not adhere to the requirements of the dispossessory statute. For instance, the Task Force was entitled to a trial on the issues, which would include taking the testimony of witnesses orally in open court (unless otherwise provided), and proper notice of a trial. But, assuming arguendo that PFS met the affidavit and other requirements for applying for a writ of dispossession, the Task Force did not receive the required trial and notice. Accordingly, the court erred by granting a writ of possession to PFS. Thus, the court’s order granting the writ of possession is reversed.

Contrary to PFS’s contention, the Task Force preserved the issue. The Task Force challenged below the procedure to summarily dispossess it, asserting for example, that Georgia law did not allow PFS to obtain the relief sought, that there could be no final resolution of possession before the Task Force was provided with a trial on the merits, and that possession could not be modified on an interlocutory basis.

Notably, insofar as the court order purports to limit immediate appellate review to one particular aspect of the order being appealed, it is ineffectual.

Where an appeal is taken under any provision of subsection (a), (b), or (c) of [OCGA § 5-6-34], all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone.

Case No. A12A2346

2. United Way filed this cross-appeal from the court’s February 9, 2012 order, challenging the trial court’s order directing it to perform certain acts in connection with the Task Force’s dispossession from the property. In light of our holding in Division l, the issues raised in this appeal are rendered moot. Accordingly, this cross-appeal is dismissed.

Decided March 29, 2013.

Baker, Donelson, Bearman, Caldwell & Berkowitz, Steven G. Hall, for appellant (case no. A12A2345).

McKenna, Long & Aldridge, R. Daniel Beale, for appellant (case no. A12A2346).

Fellows LaBriola, Steven M. Kushner, Christina M. Baugh, for appellee.

Judgment reversed in Case No. A12A234S. Appeal dismissed in Case No. A12A2346.

Ellington, C. J., concurs. Dillard, J., concurs in judgment only.

        Steed, v. Fed. Nat. Mtg. Corp., 301 Ga. App. 801, 805 (1) (a) (689 SE2d 843) (2009) (citation omitted); Roberts v. Roberts, 205 Ga. App. 371, 372 (2) (422 SE2d 253) (1992).

        Skelton v. Hill Aircraft & Leasing Corp., 175 Ga. App. 144, 145 (333 SE2d 14) (1985).

        Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000).

       OCGA § 9-11-43.

       See OCGA § 44-7-53 (b); Cornelius v. Finley, 202 Ga. App. 192, 193 (1) (413 SE2d 491) (1991) (“The trial notice provisions of OCGA § 9-11-40 and the concern for an expedient resolution of dispossessory actions from OCGA § 44-7-53 merge in the requirement under Uniform State Court Rule 8.3 of 24 hours trial notice in dispossessory cases. If a tenant files an answer in a dispossessory action, as appellant herein did, a trial of the issues shall be had in accordance with the procedure prescribed for civil actions in courts of record. OCGA § 44-7-53 (c). Under Rule 8.3 the state court’s trial calendar shall be distributed or published a sufficient period of time, but not less than 20 days, prior to the session of court at which the actions listed thereon are to be tried, except that the trial calendar for dispossessories shall be published at least twenty-four hours in advance of the hearing.”) (citation and punctuation omitted); Whipper v. Kirk, 156 Ga. App. 218, 221 (1) (274 SE2d 662) (1980); Queen v. Harrell, 126 Ga. App. 122, 123 (2) (190 SE2d 160) (1972). Regarding trial calendar and notice in superior court, see Uniform Superior Court Rules 8.3, 8.4.

       See Ralls v. E. R. Taylor Auto Co., 202 Ga. 107, 109 (42 SE2d 446) (1947) (the summary proceeding provided in Code § 61-303 [OCGA § 44-7-53] is the only lawful manner by which a tenant may be summarily and forcibly evicted).

       OCGA § 5-6-34 (d).

       Supra.


author: MILLER, Presiding Judge.

text:
    A12A2377.
    FACILITY INVESTMENTS, LP et al. v. HOMELAND INSURANCE COMPANY OF NEW YORK.
    (741 SE2d 228)
   MILLER, Presiding Judge.

Homeland Insurance Company of New York filed this action against its insured, Facility Investments d/b/a Westminster Commons (hereinafter “Facility”) seeking to recover damages for breach of contract, and seeking to recoup amounts it paid to resolve claims against Facility that it contends were not covered under Facility’s insurance policy. Facility filed a motion to dismiss, arguing that Homeland failed to state a claim upon which relief can be granted. The trial court denied Facility’s motion.

We granted Facility’s application for interlocutory appeal to consider the propriety of the trial court’s order. On appeal, Facility contends that (1) the trial court erred in denying its motion to dismiss because Homeland’s claims are barred by the voluntary payment doctrine and the doctrine of waiver, and (2) the trial court erred in creating a cause of action to allow an insurer to recoup money it paid to settle uncovered claims on behalf of its insured. For the reasons that follow, we reverse the trial court’s ruling.

We review a trial court’s ruling on a motion to dismiss de novo and construe the challenged pleading in favor of the party who filed it. See Northway v. Allen, 291 Ga. 227, 229 (728 SE2d 624) (2012).

Amotion to dismiss pursuant to OCGA § 9-11-12 (b) (6) will not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

(Citation and punctuation omitted.) Id.

So viewed, the record reflects that Homeland issued a Long-term Care Organization’s Professional and General Liability policy (hereinafter “the Policy”) to Facility which provided up to $1 million in coverage for Facility’s nursing home. The Policy excluded coverage for dishonest, fraudulent, criminal or intentionally malicious acts, errors or omissions, and wilful violations of law, statutes, rules or regulations.

Facility was subsequently sued for professional negligence arising from the care of a patient at its nursing home (hereinafter “the underlying case”). The complaint in the underlying case alleged that Facility engaged in fraud, intentional misconduct and wilful and wanton conduct. Homeland agreed to defend Facility in the underlying suit under a reservation of rights. Homeland expressly reserved its rights with regard to losses or defense expenses arising out of allegations of fraud, malice or violations of state and federal regulations. However, Homeland did not reserve any right to pursue claims for breach of contract, recoupment, allocation or contribution.

The plaintiffs in the underlying case developed evidence of fraud with respect to the nursing home patient’s medical chart. Plaintiffs’ counsel in the underlying case sent a letter demanding payment of the $1 million Policy limit within 30 days to settle the claims against Facility. The demand letter indicated that based on evidence of fraud, the underlying plaintiffs were entitled to punitive damages. The underlying plaintiffs also indicated that if the demand amount was not paid within the 30-day time limit, they would seek to enforce a verdict in excess of the Policy limit.

Three days before expiration of the 30-day demand, Facility sent a letter to Homeland requesting that Homeland settle the underlying suit within the Policy limit. Facility’s letter noted that discovery in the underlying suit had revealed several major hurdles for the defense, including significant charting problems, which were likely to inflame a jury. In the letter, Facility opined that these hurdles, in combination with alleged special damages in excess of $800,000, would likely lead to a judgment in excess of the Policy limit.

The next day, Homeland responded to Facility’s request with an offer to settle the case for an amount up to the Policy limit. Referring to the Policy’s terms, Homeland noted that Facility was obligated to determine a fair and proper allocation of all amounts attributable to covered and uncovered losses (hereinafter the “uncovered loss allocation provision”). Homeland asked Facility to contribute 50 percent of the settlement amount based on Homeland’s opinion that a significant portion of the claimed loss was not covered under the Policy due to Facility’s fraudulent charting. Homeland noted that in the event the parties could not reach an agreement with respect to allocation, it was still obligated to make an interim payment of the amount of the loss that the parties agree is not in dispute. Homeland stated for the first time that it would pursue recoupment/contribution in the event that Facility did not pay its share for the uncovered losses.

On the day before expiration of the 30-day demand, Facility notified Homeland that it would not contribute to a settlement, or otherwise allocate between covered and uncovered losses, because Homeland was obligated to settle the underlying suit on Facility’s behalf. Homeland sent another letter indicating its reservation of rights to pursue claims for breach of contract, recoupment, allocation and contribution. Homeland then made the required interim payment to settle the underlying suit.

Thereafter, Homeland filed the instant suit to recover from Facility the portion of the settlement amount attributable to uncovered losses. Specifically, Homeland alleged that Facility breached the Policy’s terms by failing to contribute to the settlement amount, and that Facility was required to reimburse Homeland for the uncovered losses. Homeland further alleged that Facility breached its contractual obligation to indemnify Homeland for uncovered losses, based on the uncovered loss allocation provision.

Facility moved to dismiss Homeland’s complaint for failure to state a claim, contending that Homeland waived its claims, Homeland’s claims were barred by the voluntary payment doctrine, and Homeland’s claim for recoupment is not cognizable under Georgia law. The trial court denied Facility’s motion, finding that the voluntary payment doctrine did not bar Homeland’s claims at this state of the litigation, and that Facility failed to show that Homeland waived its right to pursue recovery of the noncovered portion of the settlement payment. The trial court also found that Homeland’s claim for recoupment did not fail at this stage of the litigation. This Court granted Facility’s application for interlocutory review of the trial court’s decision.

1. On appeal, Facility contends that the trial court erred in denying its motion to dismiss, because Homeland waived its right to pursue the uncovered amounts of the settlement payment when it made such payment with knowledge of the circumstances that gave rise to its coverage defense. We agree.

The Policy, which Homeland attached to its complaint and incorporated therein by reference, contained the following pertinent provisions:

III. EXCLUSIONS
(D) Exclusions Applicable to ALL INSURING AGREEMENTS
Except as otherwise expressly provided in this Policy, this Policy does not apply to, and the Underwriter will not pay Loss or Defense Expenses for any Claim based upon, or arising out of, directly or indirectly resulting from, in consequence of, or in any way involving any actual or alleged:...
(3) dishonest, fraudulent, criminal or intentionally malicious act, error or omission by an insured; any willful violation of law, statute, rule or regulation by an Insured; or the gaining of any profit, remuneration or advantage by any Insured to which such Insured was not legally entitled, including but not limited to, health care fraud; provided, however, that no such act of one Insured will be imputed to any other Insured who was not aware of and did not participate in such act.
IV. GENERAL CONDITIONS
(D) Defense and Settlement: . . .
(3) If both Loss covered by this Policy and Loss not covered by this policy are incurred, either because a Claim made against the Insureds includes both covered and uncovered matters, or because a Claim is made against both Insureds and others not included within the definition of “Insured” set forth in DEFINITION (Q) above, the Insured Entity, the Insured Persons and the Underwriter agree to use their best efforts to determine a fair and proper allocation of all such amounts. The Underwriter’s obligation to pay Loss under this Policy shall relate only to those sums allocated to the Insureds. In making such determination, the parties shall take into account the legal and financial exposures of, and relative benefits obtained in connection with the defense and/or settlement of the Claim by the Insured Persons, the Insured Entity and others. In the event that the Underwriter and the Insureds do not reach an agreement with respect to an allocation, then the Underwriter shall be obligated to make an interim payment of the amount of Loss which the parties agree is not in dispute until a final amount is agreed upon or determined pursuant to the provisions of this policy and applicable law.

The policy defined “Loss” to include any settlement Facility was legally obligated to pay, but did not include defense expenses.

“Where the language of a contract is plain and unambiguous,... no construction is required or permissible and the terms of the contract must be given an interpretation of ordinary significance.” (Citations and punctuation omitted.) Richard Bowers & Co. v. Creel, 280 Ga. App. 199, 200-201 (1) (633 SE2d 555) (2006); see also Canton Plaza v. Regions Bank, 315 Ga. App. 303, 308-309 (3) (732 SE2d 449) (2012) (if a contract is clear and unambiguous, courts are to simply enforce the contract according to its clear terms). Here, the express terms of the Policy excluded losses and defense expenses arising out of fraudulent conduct. Homeland was aware that the plaintiffs were seeking punitive damages for fraudulent conduct. Homeland nevertheless agreed to defend Facility in the underlying suit under a reservation of rights.

Under Georgia law, where 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. First, the insurer can defend the claim, thereby waiving its policy defenses and claims of non-coverage. Second, the insurer can deny coverage and refuse to defend, leaving policy defenses open for future litigation. Or, third, the insurer can defend under a reservation of rights. ... A reservation of rights is a term of art in insurance vernacular and is designed to allow an insurer to provide a defense to its insured while still preserving the option of litigating and ultimately denying coverage. At 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. Thus, a reservation of rights is only available to an insurer who undertakes a defense while questions remain about the validity of the coverage.

(Citations and punctuation omitted; emphasis supplied.) Hoover v. Maxum Indem. Co., 291 Ga. 402, 404-405 (1) (730 SE2d 413) (2012). Moreover,

a reservation of rights exists 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 or to file a declaratory judgment action to determine its obligations. ... In order to inform an insured of the insurer’s position regarding its defenses, a reservation of rights 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. A reservation of rights is not valid if it does not fairly inform the insured of the insurer’s position.

(Citation and punctuation omitted.) Id. at 406 (1), (2). Risks not covered by or excluded from an insurance policy are not normally subject to the doctrine of waiver and estoppel. See Prescott’s Altama Datsun v. Monarch Ins. Co., 253 Ga. 317, 318 (319 SE2d 445) (1984). However, where an insurer does not unambiguously reserve its rights, uncovered claims may be subject to the doctrine of waiver or estoppel if the insurer assumes the defense of an action or continues such defense with knowledge that a claim is not covered. See World Harvest Church v. GuideOne Mut. Ins. Co., 287 Ga. 149, 153 (2) (695 SE2d 6) (2010); Prescott’s, supra, 253 Ga. at 318.

Here, Homeland defended Facility in the underlying case, knowing that the plaintiffs asserted claims for losses that were not covered under the Policy. Homeland undertook defense of the case subject to a reservation of rights letter, which specifically reserved its rights with regard to losses or defense expenses arising out of allegations of fraud. However, this letter did not provide Facility with any notice that Homeland intended to settle an uncovered claim and sue for reimbursement/contribution under the uncovered loss allocation provision. Thus, Homeland did not unambiguously reserve its rights under that provision, and any attempt to reserve additional Policy defenses based on boilerplate language in the letter was ineffective. See Hoover, supra, 291 Ga. at 406 (2); see also World Harvest Church, supra, 287 Ga. at 152-153 (1).

Homeland contends that it reserved its rights under the uncovered loss allocation provision in its subsequent letter to Facility on the day before it settled the underlying case. Homeland further contends that Facility did not object to the reservation of rights or the settlement terms. Notwithstanding Homeland’s arguments, the record clearly shows that Homeland unilaterally reserved its rights under the uncovered loss allocation provision after Facility objected to any allocation of covered and uncovered claims, and after Facility informed Homeland that it would not contribute to the settlement.

An insurer may not give an insured a unilateral notice of reservation of rights and thereupon proceed with a complete defense [and settlement] of the main claim absent [the] insured’s express or implied consent. This course of action may well result in prejudice to an insured. Upon learning of facts reasonably putting it on notice that there may be grounds for noncoverage and where the insured refuses to consent to a defense under a reservation of rights, the insurer must thereupon (a) give the insured proper unilateral notice of its reservation of rights, (b) take necessary steps to prevent the main case from going into default or to prevent the insured from being otherwise prejudiced, and (c) seek immediate declaratory relief including a stay of the main case pending final resolution of the declaratory judgment action.

(Punctuation omitted.) Richmond v. Ga. Farm Bureau Mut. Ins. Co., 140 Ga. App. 215, 219 (1) (231 SE2d 245) (1976). Under Hoover, a reservation of rights gives an insurer who is uncertain of its obligations to provide coverage the ability to investigate. Once such investigation shows uncovered claims, however, the insurer can deny coverage or file a declaratory judgment action to determine its obligations. See Hoover, supra, 291 Ga. at 406 (1).

Here, Homeland learned of facts giving grounds for noncoverage. At the time Homeland sent its subsequent reservation of rights letter, the claims of fraud were supported by evidence. When Facility refused to contribute to Homeland’s proposed settlement of the underlying case, Homeland had only two options at that point: deny coverage or seek immediate declaratory relief. See Hoover, supra, 291 Ga. at 406 (1); see also Richmond, supra, 140 Ga. App. at 219 (1) (holding that an insurer must seek immediate declaratory relief where the insurer had notice of grounds for noncoverage and the insured refuses to consent to a defense under a reservation of rights).

Decided March 29, 2013.

Arnall, Golden & Gregory, Scott F. Bertschi, for appellants.

Cozen O’Connor, Kenan G. Loomis, for appellee.

Homeland defended and settled the underlying suit with knowledge of the uncovered claims, and without specifically reserving its rights with regard to the uncovered loss allocation provision. Since Homeland settled the case, rather than denying coverage or seeking declaratory judgment, Homeland waived any right to seek reimbursement for uncovered amounts of the settlement. See World Harvest, supra, 287 Ga. at 156 (2) (holding that an insurer is estopped from asserting the defense of noncoverage where the insurer assumed or continued the defense of a suit with actual knowledge of noncoverage). Accordingly, the trial court erred in denying Facility’s motion to dismiss Homeland’s suit.

2. Facility also contends that the voluntary payment doctrine barred Homeland’s claims and that the trial court erred in creating a cause of action allowing an insurer to recoup money it paid to settle uncovered claims on behalf of its insured. Because we find that Homeland waived any right to seek reimbursement for uncovered amounts of the settlement, we need not address these additional contentions.

Judgment reversed.

Ray and Branch, JJ., concur in judgment only.

       The trial court also rejected Facility’s contention that Homeland failed to state a claim for breach of contract, finding that the amended complaint raised an issue as to whether Facility was required to pay a portion of the settlement.