author: DOYLE, Presiding Judge. BOGGS, Judge,

text:
    A12A0981.
    ALIZOTA v. STANFIELD et al.
    (734 SE2d 497)
   DOYLE, Presiding Judge.

Emmanuel Alizota appeals from the trial court’s entry of judgment terminating his parental rights and granting a petition of adoption of S. K. filed by Ryan and Melissa Stanfield. Alizota argues that the evidence was insufficient to support the trial court’s order. For the reasons that follow, we vacate the superior court order terminating Alizota’s parental rights and granting the Stanfields’ petition for adoption.

The record reflects that on December 9, 2009, M. K. was arrested for driving under the influence while S. K., approximately six months old at the time, was in her vehicle. The Department of Family and Children Services (“the Department”) took S. K. into shelter care and then placed her with the Stanfields pending a deprivation hearing. On January 22, 2010, the Juvenile Court of Fayette County entered an order adjudicating S. K. deprived as to the mother on the grounds of neglect, lack of proper parental care and supervision, and drug use. At this time, the Department began formulating a reunification case plan, in which they also included Alizota, who was the putative father of S. K.

Alizota thereafter petitioned to legitimate the child, and the juvenile court granted his petition in March 2010. Alizota and the mother eventually consented to nonreunification, and long-term temporary custody of S. K. was given to the Stanfields, pursuant to OCGA § 15-11-58 (i). The parties moved for nonreunification with relinquishment of custody before the juvenile court, which entered a consent order dated June 14, 2010, nunc pro tunc April 15, 2010, and an amended consent order dated August 18,2010, nunc pro tunc June 14, 2010, finding that Alizota had agreed to relinquish custody of S. K., and granting custody to the Stanfields until S. K. reached 18 years old. The order also found that Alizota wished to remain active in S. K.’s life, and the court ordered supervised visits for Alizota, finding that he could later move for unsupervised visits with the child. Finally, in line with the statutory provisions of OCGA § 15-11-58 (i) (2) (A), the juvenile court ordered the Department to review S. K.’s placement every 36 months. From August 2010 to December 2010, Alizota, who previously had completed parenting classes, visited with S. K., first on a supervised basis and later on an unsupervised basis, and he also remitted child support to the Stanfields, had begun to bond well with S. K, and had no positive drug screens.

Nevertheless, on December 3, 2010, the Stanfields filed a petition for adoption of S. K. in the Superior Court of Fayette County, at which time S. K. was two days shy of being eighteen months old. Alizota answered the petition, challenged the Stanfields’ contentions that S. K. continued to be deprived as to him or that it was in S. K.’s best interest to terminate his parental rights, asked the superior court to deny the adoption petition, and counterclaimed for permanent custody of S. K.

On May 20, 2011, the superior court entered its order terminating Alizota’s parental rights and ordered the adoption of S. K. by the Stanfields. This direct appeal followed. This Court, however, cannot review the merits of the superior court’s order because that court did not have jurisdiction to terminate Alizota’s parental rights and thereby rule on the Stanfields’ adoption petition. As this Court previously explained in In the Interest of J. C. W., in cases like this one, “involving issues of concurrent jurisdiction between juvenile courts and superior courts, Georgia courts have repeatedly held that the first court taking jurisdiction will retain it. The policy behind this rule is to keep down litigation and avoid a multiplicity of suits.” While it is true that a superior court has concurrent jurisdiction over termination proceedings in connection with a petition for adoption, in this case, the Stanfields’ adoption petition alleged that Alizota’s parental rights should be terminated on the basis that S. K. was deprived by Alizota. The juvenile court, however, previously had exercised jurisdiction over the deprivation case involving Alizota and S. K., and the proceedings in that court were suspended only by the entry of the temporary long-term custody agreement entered into by the consent of both Alizota and the Stanfields. Thus, the superior court erred by exercising jurisdiction over the Stanfields’ petition, and instead, the juvenile court should have presided over the termination of Alizota’s parental rights in the first instance.

Accordingly, we vacate the trial court’s May 20, 2011 order terminating Alizota’s parental rights and granting the Stanfields’ adoption petition.

Judgment vacated.

Andrews, J., concurs. Boggs, J., concurs specially and in judgment only.

BOGGS, Judge,

concurring specially and in judgment only.

I concur in the judgment only and write separately to explain that the superior court lacked jurisdiction to terminate parental rights based upon the order issued by the juvenile court under OCGA § 15-11-58 (i). This Code section authorizes a juvenile court to “enter a custody order which shall remain in effect until the child’s eighteenth birthday” in cases in which “referral for termination of parental rights and adoption is not in the best interest of the child.” OCGA § 15-11-58 (i) (1). In this case, the juvenile court’s long-term custody order under OCGA § 15-11-58 (i) required the Fayette County Department of Family and Children Services to review the child’s placement every 36 months and provide a report to the juvenile court. The juvenile court therefore continued to exercise jurisdiction over the issue of termination of parental rights through its OCGA § 15-11-58 (i) order.

As the Supreme Court of Georgia recently explained, “[t]he doctrine of priority jurisdiction, a version of which is embodied in OCGA § 23-1-5, is invoked to determine which court with concurrent jurisdiction will retain that jurisdiction.” Ertter v. Dunbar, 292 Ga. 103 (734 SE2d 403) (2012). Juvenile courts and superior courts both have jurisdiction over petitions for termination of parental rights, but the superior court’s concurrent jurisdiction is limited to cases involving adoption proceedings. See OCGA § 15-11-28 (a) (2) (C). In this case, the juvenile court exercised its jurisdiction first and continues to exercise its jurisdiction through the periodic review of its order issued under OCGA § 15-11-58 (i). It therefore retains jurisdiction over the issue of termination of parental rights.

I also take this opportunity to note what appears to be a trend of increasing litigation regarding the application of concurrent jurisdiction between juvenile and superior courts. See Ertter, supra; In the Interest of J. C. W., 318 Ga. App. 772 (734 SE2d 781) (2012); In the Interestof J. C. W., supra, 315 Ga. App. 566; Segars v. State of Ga., 309 Ga. App. 732 (710 SE2d 916) (2011); Long v. Long, 303 Ga. App. 215 (692 SE2d 811) (2010). For this reason, the General Assembly may desire to provide the bench and bar with additional guidance on the appropriate limits and application of each court’s concurrent jurisdiction.

Decided November 20, 2012

Reconsideration denied December 12, 2012

Justin B. Grubbs, for appellant.

Stephen D. Ott, James B. Outman, for appellees.

Lloyd W. Walker, amicus curiae.

       The trial court also terminated the rights of M. K, S. K.’s biological mother, but she is not a party to this appeal.

       315 Ga. App. 566 (727 SE2d 127) (2012).

       (Citations and punctuation omitted.) Id. at 572 (1) (involving a similar circumstance of the foster parents petitioning a superior court for adoption of twins after the mother had signed a consent for nonreunification with the understanding that she would be allowed visitation with the children).

       See OCGA § 15-11-28 (a) (2) (C). See also In the Interest of C. C., 193 Ga. App. 120, 121 (1) (387 SE2d 46) (1989) (holding that juvenile court did not have jurisdiction because petition was one for permanent custody and did not arise from allegation of deprivation).

       Compare with Wiepert v. Stover, 298 Ga. App. 683, 685-686 (3) (680 SE2d 707) (2009); In the Interest of C. C., 193 Ga. App. at 121 (1).

       See In the Interest of J. C. W., 315 Ga. App. at 572 (1). Compare with Ertter v. Dunbar, 292 Ga. 103 (734 SE2d 403) (2012) (superior court did not err by exercising jurisdiction over petition for permanent custody even though the juvenile court previously had entered an order for custody under OCGA § 15-11-58 (i) because juvenile court did not have jurisdiction to award permanent custody).

       This Code section also contains other prerequisites for entry of a long-term custody order.

       As explained hy this Court in In the InterestofJ. C. W., 315 Ga. App. 566 (727 SE2d 127) (2012),
      Our opinion in Snyder v. Carter, 276 Ga. App. 426-427 (623 SE2d 241) (2005), does not require a different result because in Snyder, the termination petition was filed in juvenile court after a petition for termination and adoption was filed in superior court. The issue before us in Snyder was whether a pending deprivation proceeding precluded a superior court from exercising jurisdiction over the adoption and termination petition. Additionally, the Snyder court relied upon a decision, Edgar v. Shave, 205 Ga. App. 337 (422 SE2d 234) (1992), issued at a time when the superior court had exclusive rather than concurrent jurisdiction over termination petitions filed in connection with adoption. Snyder, 276 Ga. App. at 427. Compare OCGA § 15-11-5 (a) (2) (C) (1992) with current OCGA § 15-11-28 (a) (2) (C).
      (Emphasis in original.) Id. at 572 (1), n. 9.


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A12A1125, A12A1126. A12A1281.
    LLOYD’S SYNDICATE NO. 5820 v. AGCO CORPORATION; and vice versa. GLYNN GENERAL PURCHASING GROUP, INC. et al. v. AGCO CORPORATION.
    (734 SE2d 899)
   PHIPPS, Presiding Judge.

AGCO Corporation manufactured and sold agricultural equipment, offering extended protection plans to its customers. Warranty Specialists, Inc. d/b/a Glynn General Corporation sold the extended protection plans to AGCO and administered the plans. Glynn General Purchasing Group, Inc. (“GGPG”) obtained a master policy of liability insurance for AGCO from Lloyd’s Syndicate No. 5820 d/b/a Cassidy Davis to provide coverage to AGCO for its liability to AGCO’s customers pursuant to the extended protection plans. When Warranty Specialists later suspended payment of warranty claims filed in connection with failed wheel motors on equipment enrolled in the extended protection plans, AGCO sued. The trial court granted AGCO’s motion for partial summary judgment and denied Cassidy Davis’s motion for summary judgment on the issue of whether the extended protection plans and the master insurance policy covered or excluded coverage for equipment failures resulting from a design or engineering defect. The court denied Cassidy Davis’s motion for summary judgment on AGCO’s claims for bad faith refusal to pay. It also denied AGCO’s summary judgment motion based on estoppel and the inapplicability of an exclusipn clause in the master insurance policy, and denied summary judgment to Warranty Specialists and GGPG on various claims, including those for breach of contract, fraud and attorney fees. For the reasons that follow, we affirm the judgments.

AGCO manufactured and sold an agricultural spray applicator known as the RoGator. The RoGator was powered by four wheel motors; the failure of one wheel motor caused the entire machine to stop functioning.

Beginning in 2005, AGCO offered extended protection plans (“EPPs”) to its customers who purchased RoGators. AGCO purchased the EPPs from Warranty Specialists, paying the latter premiums for each RoGator enrolled in an EPP. Warranty Specialists administered the EPP. Under the EPP, AGCO agreed to repair or replace covered parts of the RoGator, “if required due to a MECHANICAL BREAKDOWN or FAILURE that is the result of a true defect in material or workmanship.”

The EPP pertinently provided: “This service contract coverage is limited exclusively to the repair or replacement of covered parts . . . determined to have failed due to a MECHANICAL BREAKDOWN or FAILURE as defined under terms and definitions.” The EPP defined a covered “mechanical breakdown or failure” as “the actual breaking or electronic failure of any covered part of the covered MACHINE while in ordinary use arising from faults attributable to manufacturing defects in workmanship or materials in such MACHINE causing sudden stoppage of the functions thereof and necessitating repair before it can resume work.”

GGPG obtained a master policy of liability insurance for AGCO from Cassidy Davis, which provided coverage to AGCO for any liability AGCO had to its customers for machines enrolled in the EPP.

Pursuant to the EPP and the master policy, the purchaser of a machine that had a mechanical breakdown or failure presented the machine to one of AGCO’s dealers, who made the initial determination of coverage; if the repair was covered, the dealer repaired the machine. The dealer then submitted a claim for reimbursement for the repair cost to Warranty Specialists, who would evaluate and pay or deny claims under the EPP. Warranty Specialists paid premiums to Cassidy Davis, and Cassidy Davis paid Warranty Specialists for claims deemed valid.

In mid- to late 2008, after having accepted and paid approximately 25 wheel motor claims, Warranty Specialists stopped processing the claims. In September 2008, it informed AGCO that it was placing all wheel motor claims on hold until it received support from AGCO (such as assistance in paying the claims or higher premiums).

Also in September 2008, Warranty Specialists sent an e-mail message to AGCO stating that no further wheel motor claims would be paid because, pursuant to the master policy, Cassidy Davis had invoked the Epidemic Failure Clause (“EFC”) in relation to RoGator wheel motors. “With immediate effect, no further claims should be paid in respect of any [AGCO] attachments . . .; for the avoidance of doubt this includes any claims pending or subsequently advised.” When Warranty Specialists failed to pay the dealers’ wheel motor claims, AGCO paid the claims.

AGCO sued Warranty Specialists, Cassidy Davis, and GGPG, seeking declaratory relief regarding coverage under the master policy and reimbursement for payment of the warranty claims; asserting claims for breach of contract and bad faith against Cassidy Davis; asserting claims for breach of contract and fraud against Warranty Specialists and GGPG; and asserting claims for money had and received against Warranty Specialists, Cassidy Davis, and GGPG. Cassidy Davis appeals in Case No. A12A1125; AGCO appeals in Case No. A12A1126; and Warranty Specialists and GGPG appeal in Case No. A12A1281. This court reviews the grant or denial of summary judgment de novo.

Case No. A12A112S

1. Cassidy Davis contends that the trial court erred by granting AGCO’s motion for partial summary judgment and by denying its motion for summary judgment on the issue of whether there was coverage for breakdowns attributable to design defects. According to Cassidy Davis, the EPP and master policy did not afford coverage for failures resulting from a design or engineering defect, and the RoGator’s wheel motor failures resulted from such a defect.

The trial court ruled that the language of the EPP and master policy was unambiguous and “[did] not exclude or limit coverage for a design or engineering defect”; and that, as used in these contracts, “the term ‘manufacturing defects’ [did] not exclude coverage for breakdowns or failures attributable to, or caused by, a design defect.” The court granted AGCO’s motion for partial summary judgment “on the issue of whether the EPP and the master policy provide coverage for a mechanical breakdown or failure that is allegedly attributable to, or caused by, a design or engineering defect.”

An insurance policy is simply a contract, the provisions of which should be construed as any other type of contract. The whole contract should be looked to in arriving at the construction of any part.

As set out above, the EPP covered the actual breaking or electronic failure of any covered part “while in ordinary use arising from faults attributable to manufacturing defects in workmanship or materials.” Where a contract requires that conduct “arise out of” an act, “it does not mean proximate cause in the strict legal sense but instead encompasses almost any causal connection or relationship.” “Indeed, nothing more than a slight causal connection is required to show that a loss arose out of a specified act set forth in a contract.” The phrase “arising from faults attributable to manufacturing defects in workmanship or materials” is broad enough to include a breakdown or failure related to a manufacturing defect, even where there was a design or engineering defect. Notably, Warranty Specialists initially paid dozens of wheel motor claims, indicating that it found upon initial review that the wheel motor claims were covered under the EPP. “The construction placed upon a contract by the parties thereto, as shown by their acts and conduct, is entitled to much weight and may be conclusive upon them.”

Coverage is construed broadly and it is the insurer’s duty to clearly set forth exclusions to coverage. The EPP specifically set forth its exclusions in a section entitled “WHAT IS NOT COVERED.” It contained no exclusion for mechanical breakdowns or failures resulting from design or engineering defects.

Thus, coverage for the failures at issue were covered and not excluded under the EPP and master policy. Inasmuch as AGCO was entitled to judgment as a matter of law on this particular issue, and Cassidy Davis was not, the trial court did not err in so ruling.

2. Cassidy Davis contends that the trial court erred in denying its motion for summary judgment on AGCO’s claim that it acted in bad faith in denying the warranty claims, because Cassidy Davis had a reasonable basis to deny coverage; further, it argues, AGCO’s demand was not made at a time when it had a right to demand payment.

(a) The question of whether an insurer denied benefits in bad faith is for the trier of fact. Thus, assuming that the procedural requirements of the Code section were met, the question of whether an insurer has acted in bad faith in denying a claim under OCGA § 33-4-6* must be submitted to a jury unless the insurer can prove as a matter of law that it possessed a reasonable defense to coverage. The insurer’s defense to the coverage must be reasonable under the circumstances presented in the case.

There was evidence that, in explaining its basis for denying the claims, Cassidy Davis cited “a clear historical reliability problem on wheel motors,” not a contractual provision. And it cited the EFC; AGCO pointed to evidence that the EFC was not part of the EPP or the master policy, that it had been given no notice of the EFC before the clause was invoked, that Cassidy Davis and Warranty Specialists knew of previous wheel motor issues before entering into the contracts, and that the claims were being denied because they had become too costly. We cannot conclude that Cassidy Davis’s refusal to pay was reasonable as a matter of law, and that it was entitled to summary judgment.

(b) AGCO’s demand for payment pursuant to OCGA § 33-4-6 was valid. On April 15, 2009, AGCO delivered a letter to Cassidy Davis demanding reimbursement for payments AGCO had made on the warranty claims; AGCO stated therein that it had paid $410,000 in wheel motor claims.

Cassidy Davis contends that the bad faith claim was not viable when made because payment was not yet due. It cites the master policy provision that Cassidy Davis “agrees to indemnify [AGCO] for all sums which [AGCO] shall be held legally liable to pay in respect of their contractual liability.” Cassidy Davis asserts that because no judgment had been rendered against AGCO at the time of the demand, AGCO had not been held liable to pay any sums.

As explained in DTI Logistics, “indemnify’ has been defined as “to reimburse another for a loss suffered because of a third party’s or one’s own act or default”; and “indemnity’ has been defined as “a duty to make good any loss, damage or liability incurred by another.”

There was no requirement in the EPP or the master policy that a judgment had to be rendered against AGCO before it could demand payment from Cassidy Davis and before Cassidy Davis was obligated to reimburse AGCO. In the context of the contracts in this case, the use of the term “indemnify’ is broad enough to include any liability, not just liability resulting from a judgment. AGCO was liable under the terms of the EPP to pay for warranty claims when customers filed claims in accordance with the EPP. Cassidy Davis was not entitled to summary judgment on the bad faith claim.

Case No. A12A1126

3. In its cross-appeal, AGCO contends that the trial court erred by denying its motion for summary judgment on the basis that Warranty Specialists, Cassidy Davis, and GGPG were estopped to assert other grounds to deny coverage (namely, that the EPP did not cover design or engineering defects) because they had initially denied the claims based on the EFC. AGCO asserts that estoppel applies because AGCO relied to its detriment on the reason initially given.

Estoppels are not generally favored by the law. Further, the coverage of a policy cannot be extended by estoppel; the doctrine of estoppel based on the conduct or action of the insurer or its agent is not available to bring within the coverage of a policy risks not covered by its terms, or risks not expressly excluded therefrom. Moreover, estoppel is a question for the jury unless it can be unequivocally established. When the warranty claims were initially denied, the appellees took no position regarding the EPP and whether it also provided a basis for denying the claims. AGCO has not shown detrimental reliance on the appellees’ initial assertion that the EFC barred the claims. Thus, AGCO has not shown that Warranty Specialists, Cassidy Davis, and GGPG are estopped from asserting a different ground than that initially stated.

4. AGCO also contends that the trial court erred in denying its motion for summary judgment because the EFC was not a valid exclusion to the master policy. AGCO asserts that it had no knowledge of the master policy because the appellees had failed to deliver it to AGCO, in violation of OCGA § 33-24-14 (a). “When an insurance company fails to mail or deliver the insurance policy to the insured within a reasonable amount of time after its issuance, the insurance company may still rely on exclusions contained in the policy of which the insured otherwise had notice.”

GGPG was the master policy holder, and AGCO was an insured by virtue of its membership in GGPG. There was evidence that GGPG had notice of the EFC. Under the circumstances, the trial court did not err by concluding that the appellees are not precluded as a matter of law from relying on the EFC.

Case No. A12A1281

5. Warranty Specialists and GGPG contend that the trial court erred by granting AGCO’s motion for partial summary judgment, expressly adopting the arguments stated in Cassidy Davis’s brief in Case No. A12A1125. But as discussed in Division l, those arguments are without merit. The trial court did not err in granting AGCO’s motion for partial summary judgment.

6. Warranty Specialists and GGPG assert several contentions to support their position that the trial court erred by denying their motion for summary judgment. The contentions are without merit.

(a) Warranty Specialists asserts that it was entitled to summary judgment on AGCO’s breach of contract claim because it provided insurance and administered the EPP as agreed. But there was evidence that Warranty Specialists had stopped administering the claims, holding them indefinitely without paying or denying them, contrary to the terms of the EPP and master policy. The trial court did not err in denying summary judgment to Warranty Specialists.

(b) Warranty Specialists contends that it was entitled to summary judgment on AGCO’s fraud claim because the claim was based on allegations that Warranty Specialists had misrepresented to AGCO that design defect claims would be covered, but there was no evidence that it had made the representations, that they were false, and that AGCO reasonably relied on said representations. “[S] light circumstances may be sufficient to carry conviction of [fraud’s] existence.” AGCO pointed to some evidence of fraud (e.g., regarding a Warranty Specialists’ agent’s prior knowledge of problems with the equipment and failure to disclose or provide to AGCO the EFC) to create an issue of fact.

(c) Warranty Specialists asserts that it was entitled to summary judgment on AGCO’s claim that it was entitled to receive “cover” damages because AGCO had to purchase replacement EPPs from another provider after Warranty Specialists ceased enrolling AGCO’s equipment in its EPP in 2008. Warranty Specialists states that it had not agreed to enroll AGCO’s products through the end of 2008 (or for any specific period). But there was evidence that the parties had anticipated enrolling RoGators in the EPP plan beyond August 15, 2008, and evidence that the master policy period would not end until November 30, 2008. Warranty Specialists was not entitled to judgment as a matter of law on the claim for cover damages.

(d) Warranty Specialists contends that it was entitled to summary judgment on AGCO’s claim for attorney fees under OCGA § 13-6-11 because AGCO cannot prevail on any of its claims, and because there was no evidence of bad faith or stubborn litigiousness. For the reasons discussed above, the former contention is without merit. The latter contention is also without merit.

OCGA § 13-6-11 permits the award of attorney fees to a plaintiff where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. Questions of bad faith, stubborn litigiousness and unnecessary trouble and expense are generally for the jury to decide. “Even slight evidence of bad faith can be enough to create an issue for the jury.” There was evidence that Warranty Specialists acted in bad faith (for instance, its failure to communicate the existence of the EFC to AGCO and its failure to process pending claims). Thus, Warranty Specialists was not entitled to summary judgment on the claim for attorney fees.

(e) GGPG contends that it was entitled to summary judgment on all of AGCO’s claims against it, because there was no evidence that it had engaged in any of the conduct for which AGCO seeks damages. It asserts that it was merely the holder of the master policy issued by Cassidy Davis, under which AGCO obtained its insurance, and that it existed solely as a vehicle through which insurance could be purchased; further, it argues that AGCO’s evidence was insufficient to raise a fact question regarding GGPG’s liability as an alter ego of Warranty Specialists. But AGCO alleged that GGPG was liable because it had failed to procure the proper insurance coverage for its equipment.

Moreover,

it cannot be held as a matter of law that evidence insufficient to pierce the corporate veil automatically serves to negate the existence of an agency relationship between the corporations. . . . [Ejven where a parent and wholly-owned subsidiary have remained separate corporate entities so that the acts of one are not chargeable to the other under the alter ego doctrine, both corporations may nonetheless be subject to liability where one corporation acted as the agent for the other.

. There was evidence that GGPG was “so organized and controlled and its business conducted in such a manner as to make it merely an agency, instrumentality, adjunct, or alter ego of [Warranty Specialists] .” In addition to evidence that it purchased the insurance, there was evidence that Warranty Specialists and GGPG “are one and the same,” and that they were commonly owned. A fact question existed, and GGPG was not entitled to summary judgment.

Decided November 30, 2012 —

Reconsideration denied December 12, 2012

McMickle, Kurey & Branch, Scott W. McMickle, for Lloyd’s Syndicate No. 5820.

Freeman, Mathis & Gary, T. Bart Gary, Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Bradley J. Watkins, McKenna, Long & Aldridge, Seth F. Kirby, for AGCO Corporation.

Hawkins, Parnell, Thackston & Young, Kim M. Jackson, Frank C. BedingerHI, JuheeJun, for Glynn General Purchasing Group, Inc.

Judgments affirmed.

Ellington, C. J., and Dillard, J., concur.

       The Epidemic Failure Clause purportedly contained in the master policy provided:
      In the event that the total number of claims from a common cause for a particular component or components,... amounts to more than 10% of the earned units, this shall be considered an “Epidemic Failure”, and will be the sole responsibility of [AGCO]. Accordingly, [AGCO] will be liable for all claims arising from an Epidemic Failure and all claims relating to, or arising from, a component which, by virtue of this clause, is the subject, or cause, of an Epidemic Failure.

        ChoicePoint Services v. Hiers, 284 Ga. App. 640 (644 SE2d 456) (2007).

       AGCO does not concede that the failures resulted from a design or engineering defect; it contends that the issue is not determinative because design or engineering defects were covered and not excluded.

       See Certain Underwriters at Lloyds, London v. DTI Logistics, 300 Ga. App. 715, 718 (1) (686 SE2d 333) (2009).

       OCGA § 13-2-2 (4).

        Lawyers Title Ins. Corp. v. New Freedom Mtg. Corp., 285 Ga. App. 22, 30 (645 SE2d 536) (2007) (punctuation omitted).

       Id.

        Eickhoff v. Eickhoff, 263 Ga. 498, 504-505 (435 SE2d 914) (1993) (citations and punctuation omitted), overruled on other grounds in Lee v. Green Land Co., 272 Ga. 107 (527 SE2d 204) (2000); see Purcell v. Allstate Ins. Co., 168 Ga. App. 863, 866 (310 SE2d 530) (1983).

        DTI Logistics, supra at 721 (2) (the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on that coverage in clear and explicit terms).

       See Certain Underwriters at Lloyd’s of London v. Rucker Constr. Co., 285 Ga. App. 844, 850 (3) (648 SE2d 170) (2007); First Financial Ins. Co. v. American Sandblasting Co., 223 Ga. App. 232, 233 (2) (477 SE2d 390) (1996).

       OCGA § 33-4-6 pertains to an insurer’s liability for damages and attorney fees when the insurer has refused, in bad faith, to pay for a covered loss.

        Rucker Constr. Co., supra; see also Ga. Farm Bureau Mut. Ins. Co. v. Murphy, 201 Ga. App. 676, 679 (1) (411 SE2d 791) (1991).

        Murphy, supra at 677 (1); see also Rucker Constr. Co., supra at 850.

       See generally Murphy, supra at 679 (1) (failure of insurer to investigate an alleged loss, and a denial of any liability upon the ground that the loss was not recoverable under the policy, but arose from some cause not covered by the policy, may be evidence of bad faith).

       Supra.

       Id. at 718 (1).

       Id.

       See DTI Logistics, supra at 718 (1) (coverage for loss of cargo was triggered when loss occurred); see also Owners Ins. Co. v. Smith Mechanical Contractors, 285 Ga. 807, 810 (683 SE2d 599) (2009).

        White v. White, 274 Ga. 884, 885 (1) (561 SE2d 801) (2002).

        Lumber Transport v. Intl. Indem. Co., 203 Ga. App. 588, 590 (2) (c) (417 SE2d 365) (1992).

        Smithloff v. Benson, 173 Ga. App. 870, 874 (3) (328 SE2d 759) (1985).

       See generally Ga. Farm Bureau Mut. Ins. Co. v. Vanhuss, 243 Ga. App. 26, 27 (532 SE2d 135) (2000) (estoppel requires detrimental change in position in reliance on conduct of party to be estopped).

       See generally Danforth v. Govt. Employees Ins. Co., 282 Ga. App. 421, 428 (4) (c) (638 SE2d 852) (2006).

       OCGA § 33-24-14 (a) (providing that every policy shall be mailed or delivered to the insured within a reasonable period of time after its issuance); see Danforth, supra at 426 (4) (b) (an insurer may not rely on an exclusion where it did not timely deliver a policy and where the insured had no knowledge of the exclusion); Investor’s Nat. Life Ins. Co. v. Norsworthy, 160 Ga. App. 340 (287 SE2d 66) (1981).

        Danforth, supra (punctuation and footnote omitted).

       Supra.

       See generally Threatt v. Rogers, 269 Ga. App. 402, 407 (3) (604 SE2d 269) (2004) (court did not err by denying motion for summary judgment where issues of fact remained regarding whether party had breached sales contract).

        Stinson v. Artistic Pools, 236 Ga. App. 768, 769 (2) (513 SE2d 510) (1999) (citations and punctuation omitted).

       See OCGA § 23-2-53 (suppression of a material fact which a party is under an obligation to communicate constitutes fraud).

       See OCGA § 11-2-712 (regarding a buyer’s right to procure substitute goods and recover from the seller, as damages, the difference between the cost of cover and the contract price).

        Backus Cadillac-Pontiac v. Ernest, 195 Ga. App. 579, 581 (2) (394 SE2d 367) (1990).

        Morrison Homes of Florida v. Wade, 266 Ga. App. 598, 600 (2) (598 SE2d 358) (2004).

        Kissun v. Humana, Inc., 267 Ga. 419, 420 (479 SE2d 751) (1997) (citations and punctuation omitted).

       See id. (citations and punctuation omitted).

       Id.


author: Ray, Judge.

text:
    A12A1178.
    SMITH v. REDDICK.
    (735 SE2d 15)
   Ray, Judge.

Earnest Reddick, a truck driver, filed suit against Jesse Vernon Smith d/b/a Smith Auto Diesel Repair in connection with repairs Smith performed on Reddick’s 1999 Freightliner truck. After a jury trial, the jury awarded Reddick $200,000 in damages. Smith appeals, and in several enumerations of error, he asserts that the trial court erred in denying his motion for new trial, or in the alternative, motion for remittitur, on the grounds that the verdict was excessive and that the evidence was insufficient to support the verdict.* Because we find that the trial court did not abuse its discretion in denying this motion, we affirm.

The evidence in this case shows that in February 2005, while hauling a load for his employer, Reddick’s 1999 Freightliner truck broke down near Cordele. Reddick called Smith’s automobile repair shop for assistance in towing the truck to the dealership. After a discussion where Smith represented that he was certified to work on Freightliner trucks, the parties agreed that the truck would be towed instead to Smith’s shop for repairs. Once at the shop, Smith’s employee inspected the truck and determined that one of its cylinders needed repair. At trial, the parties disputed whether Smith repaired the second or the third cylinder. Reddick testified that, over his objection, Smith repaired the truck with used parts. Smith billed Reddick $5,911.42 for the repairs. Reddick drove the truck for about 16 more deliveries, before it broke down on April 27, 2005.

After the truck broke down, Reddick had it towed to a Freight-liner dealer at a cost of $429. The dealer found that the truck broke down because of a defective third cylinder and estimated that it would cost $31,170.30 to repair.

Upon learning that the truck’s failure was due to a faulty third cylinder, Reddick then called Smith, who refused to come repair the truck, claiming that he had not repaired the third cylinder. At trial, Smith testified that he had repaired the truck’s second cylinder and, thus, should not be liable for any damage to the truck’s third cylinder. However, Charles Powell, Smith’s employee who was present during the truck’s repair, testified that Smith had repaired the third cylinder and that, during the course of the litigation, “Smith called me twice to get me to testify in this case and to say that we worked on the #2 cylinder instead of the #3 cylinder, which was totally untrue.” Roger Mitchell testified as an expert on tractor-trailer repair and opined that the truck’s failure could be attributed either to the installation of used parts or to the improper installation of rods and cylinders.

Unable to pay for the repairs, Reddick allowed the truck to remain at Freightliner for three months until he was told to remove it from their premises. Reddick then paid $2,700 to tow the truck to a storage facility. Reddick has paid $3,500 in storage fees and faces an outstanding bill of $5,847.50 for costs related to storing the truck.

Because he was unable to drive his own truck, Reddick spent 32 months prior to trial unemployed, and when he was able to find work, it was for far less money than he had made as an owner-operator of a truck.

At the conclusion of the trial, the jury awarded a verdict in the amount of $200,000 in favor of Reddick. Smith filed a motion for a new trial, or in the alternative, motion for remittitur, which the trial court denied. Smith appeals.

1. As a threshold matter, we address the deficiencies of Smith’s brief, which does not follow the form or sequences required by Court of Appeals Rule 25 (c) (1). Smith’s brief contains five enumerations of error, but those enumerations are only supported by a single argument section intended to address them all. “We caution that this Court’s rules are designed to facilitate the consideration of enumerated errors and compliance with such rules is not optional.” Smith’s failure to adhere to our rules has hampered our ability to ensure that all his enumerations not supported by argument are addressed. “Accordingly, to the extent that we are able to discern which of the enumerations are supported in the brief by citation of authority or argument, we will address those enumerations.”

2. When an independent truck driver is not on the road, he is not earning money, so Reddick sued Smith for, among other things, his lost earnings during the time he was without use of his truck. In three related enumerations of error, Smith argues that the verdict was excessive, that the evidence was insufficient to support the amount awarded, and that the trial court erred in denying his motion for new trial, or in the alternative, motion for a remittitur, on the basis of an excessive verdict. Specifically, Smith appears to argue that Reddick was not entitled to seek lost earnings damages and that he did not present sufficient evidence to support his claims for lost earnings arising from the faulty repair. We disagree.

“The question of damages is ordinarily one for the jury; and the court should not interfere with the jury’s verdict unless the damages awarded by the jury are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case.” “A motion for new trial on the grounds that the verdict was excessive addresses itself to the discretion of the trial judge who saw the witnesses and heard the testimony.” Therefore, our inquiry on appeal “is confined to the question of whether the trial court abused its discretion in denying a motion for a new trial.” On appeal, this Court will not find that the trial court erred in denying a motion for a new trial unless the jury’s award is “so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake on the part of the jurors.”

Reddick was authorized under Georgia law to present evidence supporting his claim for lost earnings and to request a jury instruction on that claim. “When someone like [Reddick] suffers an injury to his person or property by the tort of another and is, as a result, unable for a time to practice his profession or occupation, he is entitled... to recover his lost earnings as an element of his damages.”* “Where damages are sought for the interruption of an established business or profession, it is proper to calculate the lost income or profits by showing the amount of time lost and the average value of such loss based on operations for a reasonable period immediately prior thereto.” In this case, Reddick provided the following testimony in support of his claims for lost earnings: because he was unable to drive his own truck, Reddick testified that he spent 32 months between April 2005 and the trial in February 2011 unemployed, and when he was able to find work, he earned far less money than he had made as an owner-operator of a truck. Reddick testified that he was paid weekly as an independent contractor for Watkins Motor Lines, Inc., a freight-hauling company, and that his gross earnings were based on the number of loads that he hauled each week and the distance that he drove. Reddick was responsible for paying for the costs of fuel, insurance, repairs, taxes, and certain toll charges from this gross amount.

Specifically, Reddick testified that during the two-month period after Smith repaired his truck and before it broke down again, he was able to deliver about sixteen loads for his employer, earning about $20,000. Reddick testified that he estimated that his monthly net earnings were about $6,000 after accounting for expenses and taxes.

Reddick was required, however, to prove these lost earnings with a “reasonable certainty,” and Smith argues that Reddick’s testimony alone is insufficient to support an award of lost wages because he has not provided any documentation in support of this claim. However, Georgia law recognizes “the difficulty faced by an individual such as [Reddick] who happened to be laboring not for a fixed and definite salary, but for fees or commissions in establishing a claim for lost earnings.” Accordingly, the law

provides a more liberal requirement of proof under such circumstances and where by the very nature of things no better evidence is available . . . the law perforce contents itself with proof of past average earnings, not always perhaps as proof of actual lost profits, but as illustrating the earning capacity of the plaintiff, and hence the value of his lost time.

Here, Reddick testified as to the average gross and net profits he earned while driving his truck. Although he did not present any tax returns, he did submit an account summary provided by his employer supporting his claim that he earned approximately $20,000 during a two-month period. Although this admittedly is not the strongest evidence that Reddick could have provided in support of his lost wages claim, it was sufficient evidence from which a jury could determine probable lost wages.

Georgia law is clear, though, that Reddick had a duty to mitigate these damages by seeking an alternate means of earning a living. “It is recognized that a property loss, as distinguished from a personal injury, would only entitle the plaintiff to damages for that reasonable period of time which it would take him to make other arrangements for carrying on his profession.” Reddick presented the following evidence that he did, in fact, attempt to mitigate his damages: he testified that he was unable to afford the repairs necessary to fix his truck, and that he attempted to find work as a driver for wages, rather than as an independent contractor, but that when he was successful in obtaining such employment, it paid significantly less and that it was “hard to get miles with all the companies ” Accordingly, whether or not Reddick’s efforts to mitigate his damages were reasonable became a question for the trier of fact.

Decided November 29, 2012

Reconsideration denied December 12, 2012

Mills & Larkey, Ben B. Mills, Jr., for appellant.

Musa Dan-Fodio, Mark G. Pitts, for appellee.

Based upon the above, we find that the evidence presented at trial authorized the jury’s verdict, and thus, the trial court did not abuse its discretion in denying Smith’s motion for new trial, or in the alternative, motion for a remittitur.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       Smith also enumerates as error the trial court’s jury instructions on fraud. However, Smith provides no legal argument or citation to authority in support of this enumeration, as required by Court of Appeals Rule 25 (a) (3). This enumeration of error, therefore, is deemed abandoned. See Court of Appeals Rule 25 (c) (2).

       Reddick testified that he had purchased his truck for $38,000.

       (Punctuation and footnote omitted.) Govindasamy v. Wells Fargo Bank, 311 Ga. App. 452, 453 (1) (715 SE2d 737) (2011).

       (Citation omitted.) Barnett v. Fullard, 306 Ga. App. 148, 149 (1) (701 SE2d 608) (2010).

       (Citation omitted.) Id. at 150 (1).

       Although the parties characterize Reddick’s claim as one for lost wages, this is not accurate. Reddick “is an independent contractor (not an employee), and he therefore does not receive wages for his . . . services. And while the income [Reddick] received for such services could be characterized as profits in a generalized sense, the damages he seeks in tort are for his lost earnings.” (Emphasis omitted.) Dossie v. Sherwood, 308 Ga. App. 185,187, n. 8 (707 SE2d 131) (2011) (explaining distinction between lost earnings and lost profits).

       OCGA § 51-12-12 (a).

       (Citation and punctuation omitted.) Zieve v. Hairston, 266 Ga. App. 753, 760 (4) (598 SE2d 25) (2004).

       Id.

       (Citation and punctuation omitted.) Id.

       (Citations and punctuation omitted.) French u. Dilleshaw, 313 Ga. App. 834,836 (1) (723 SE2d 64) (2012) (independent truck driver unable to work while his flatbed trailer received repairs necessitated by defendant’s tortious act was entitled to seek lost earnings). Accord Dossie, supra at 188-189 (independent truck driver unable to work as a result of personal injury entitled to seek lost earnings); The Kroger Co. v. Perpall, 105 Ga. App. 682, 685-687 (3) (125 SE2d 511) (1962) (dentists unable to practice dentistry as a result of property damage entitled to seek lost earnings).

       (Citation omitted.) The Kroger Co., supra at 686 (3).

       (Footnote omitted.) Dossie, supra at 188.

       (Citation and punctuation omitted.) Young v. Ga. Agricultural Exposition Auth., 318 Ga. App. 244, 249 (733 SE2d 529) (2012).

       (Citation, punctuation and emphasis omitted.) Id.

       Id.; Gipson v. Phillips, 232 Ga. App. 235,235-236 (501 SE2d570) (1998) (testimony from injured plaintiff and wife as to the amount retired plaintiff earned and cleared from odd jobs was sufficient to determine “probable lost profits”).

        The Kroger Co., supra at 686-687 (3).

       The trial court instructed parties during a hearing on their motions in limine that it would provide a jury instruction on Reddick’s duty to mitigate his damages. However, it does not appear from the transcript that the trial court did in fact give the proposed instruction. However, we will not address that issue as Smith did not object to this omission after the jury instructions were presented to the jury and he did not raise the issue in his motion for new trial or on appeal. See Safe Shield Workwear v. Shubee, Inc., 296 Ga. App. 498, 500-501 (2) (675 SE2d 249) (2009).

       See Young, supra (“[I]t is for the jury to weigh witness credibility.”) (citations omitted).


text:
    A12A1242.
    OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY v. DARRYL J. PANELLA, LLC et al.
    (734 SE2d 523)
   Ray, Judge.

This case involves professional negligence/breach of contract claims and whether the applicable statute of limitation bars those claims. On September 5, 2000, Darryl J. Panella and Darryl J. Panella, LLC (collectively “Panella”), entered into an agency agreement with Old Republic National Title Insurance Company entitled “Agreement for Appointment of Policy-Issuing Agent.” As a policy issuing agent, Panella had the authority to issue commitments, title reports, binders, guaranties, title insurance policies, and other agreements/title insurance forms under which Old Republic agreed to assume liability for the condition of title covering real estate located in the State of Georgia. In July 2010, Old Republic filed a complaint, and a number of amended complaints, against Panella for claims allegedly arising from numerous title insurance policies issued by Panella. Panella moved for partial summary judgment, arguing that Old Republic’s claims on four of the policies were barred by OCGA § 9-3-24, the statute of limitation for claims based on written contracts. The trial court granted the motion for partial summary-judgment, and Old Republic appeals, alleging that its right to recover is pursuant to an indemnity provision, and, therefore, OCGA § 9-3-24 does not apply. We agree and reverse.

1. The standard for summary judgment is familiar and settled: summary judgment is warranted when the material facts, as shown by the pleadings and record evidence, are undisputed and these facts entitle the moving party to judgment as a matter of law. We review an award of summary judgment de novo, viewing the evidence in the record, as well as all inferences that might reasonably be drawn from that evidence, in the light most favorable to the nonmoving party.

So viewed, the record shows that on May 1, 2003, Panella issued an Old Republic policy commitment to RBC Centura Bank for property located at 1049 West Conway Road in Atlanta. According to the complaint and first amended complaint, this policy was issued without including two exceptions to cover previous deeds on file. In October 2006, a dispute and subsequent litigation arose regarding the superiority of the security deeds. Old Republic retained counsel to handle the coverage issues. On July 18, 2003, Panella issued an Old Republic policy to Washington Mutual Bank for property located in White County. The complaint and first amended complaint alleged that Panella failed to properly obtain a cancellation of a security deed that had been on the property prior to the closing of Washington Mutual’s loan. When a dispute arose over the priority of the security deeds, Old Republic retained counsel to defend Washington Mutual. On October 30, 2003, Panella issued an Old Republic policy to Bradley and Jeannette Crain, insuring title to property located at 1340 Treebrook Court in Roswell. The complaint alleged that Panella used a third party to conduct the title search, and this third party executed a faulty title search, so Old Republic paid the Crains on November 28, 2006, to remove a judgment lien against the property. On August 12, 2003, Panella issued an Old Republic policy to insure a Bank of North Georgia property located at 1020 Coleman Road in Roswell. The second amended complaint asserted that Panella failed to properly name the grantor, failed to timely file the deed, and failed to properly describe the property in an affidavit of lost deeds. When Bank of North Georgia discovered it did not have a duly perfected first priority security lien, it sued Old Republic for the title defect.

Old Republic argues that the trial court erred in finding that OCGA § 9-3-24 barred its claims for professional negligence, breach of contract, and breach of duty on these four policies. We agree. OCGA § 9-3-24 mandates that “[a] 11 actions upon simple contracts in writing shall be brought within six years after the same become due and payable.” It is well settled that the six-year statute of limitation applies to claims involving the breach of a written contract, including claims for professional negligence or breach of duty arising from the same factual basis as the breach of a written contract claim. It is equally settled that for simple contracts this six-year period begins to run on the date the contract is breached and the wrongful acts occur, not the date the actual damage results or is discovered. For indemnity provisions, however, the six-year statute of limitation in OCGA § 9-3-24 does not begin to run until “the party owing the duty [to indemnify] refuses to indemnify the other party for amounts that the latter has paid to settle the claim of another or to satisfy the judgment of another.” The question presented in this case is whether the agency contract between Old Republic and Panella was a simple contract or a contract with an indemnity provision. We find that it was a contract with an indemnity provision.

This Court has held that “indemnity” means “reimbursement, restitution, or compensation,” and Black’s Law Dictionary uses a similar definition:

Reimbursement or compensation for loss, damage, or liability in tort; esp., the right of a party who is secondarily liable to recover from the party who is primarily liable for reimbursement of expenditures paid to a third party for injuries resulting from a violation of a common-law duty.

“In a contract of indemnity the indemnitor, for a consideration, promises to indemnify and save harmless the indemnitee against liability of the indemnitee to a third person, or against loss resulting from such liability.”

Here, under the heading “Responsibility For Loss,” the agency agreement delineates the responsibility for loss between the agent and the insured, specifically noting that the term “loss” includes “payments to insured and third-party claimants, attorney’s fees, and all other costs incurred in investigation of claims, negotiation of settlements, and litigation” arising from the title insurance business conducted pursuant to the agreement. Section 1 lists the losses for which the agent (Panella) is responsible, section 2 lists the losses for which the insured (Old Republic) is responsible, and section 3 includes the following clear and unambiguous language: “If insurer incurs expenses, or pays a claim of loss for which Agent is responsible, Agent agrees to reimburse Insurer for such amounts on demand.”

It is well established that the construction of a contract involves three steps:

First, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.

In this case, the language is plain and needs no construction. The agency contract clearly mandates that if Old Republic incurs expenses or pays a claim for which its agent is responsible, the agent agrees to reimburse Old Republic for such amounts on demand. Contrary to the trial court’s rationale, an indemnification provision is not required to contain the magic word “indemnify.”* The trial court erred in finding that the agency agreement did not include a provision for indemnification. Because it did, and because the record does not show that more than six years elapsed between the date upon which the claims for indemnity accrued and the filing of this lawsuit, the trial court erred in granting partial summary judgment to Panella based on OCGA § 9-3-24.

Decided November 20, 2012 —

Reconsideration denied December 12, 2012.

Heyman & Sizemore, William B. Brown, Jacqueline Marcucci, for appellant.

Carr & Palmer, Emory L. Palmer, Alexander D. Weatherby, for appellees.

2. Panella argued in the lower court that Old Republic’s claim on one of the policies was barred by res judicata. The trial court, however, ruled that this argument was moot because it found that the statute of limitation barred the claim. Because we are reversing the trial court’s order based on the statute of limitation bar, we hereby direct the trial court to consider Panella’s res judicata argument.

Judgment reversed.

Miller, P. J., and Branch, J., concur.

       Panella additionally asserted that Old Republic’s claims on one of these policies were barred by the doctrine of res judicata.

       See OCGA § 9-11-56 (c).

        Saiia Constr. v. Terracon Consultants, 310 Ga. App. 713, 713 (714 SE2d 3) (2011).

       See id. at 716 (2); Newell Recycling of Atlanta v. Jordan Jones and Goulding, Inc., 288 Ga. 236, 237 (703 SE2d 323) (2010) (while professional malpractice claims are generally governed by the four-year statute of limitation in OCGA § 9-3-25, where there is a written agreement between the parties to perform specific professional services, the six-year statute of limitation set forth in OCGA § 9-3-24 governs the claims).

       See Hamburger v. PFM Capital Mgmt., 286 Ga. App. 382, 384-385 (1), 386-387 (2) (649 SE2d 779) (2007); Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804, 805 (1) (273 SE2d 16) (1980).

       See Saiia Constr., supra at 715 (1) (the period of limitation for an indemnity or statutory contribution claim begins to run when the claimant pays another to settle the claim of the other or to satisfy the judgment of the other); Davis v. Southern Exposition Mgmt. Co., 232 Ga. App. 773, 775 (2) (503 SE2d 649) (1998) (“Where no funds have yet been expended, a party’s right to seek [contractual] indemnification has not yet actualized”) (citation omitted).

        Travelers Ins. Co. v. Ga. Power Co., 51 Ga. App. 579, 583 (181 SE 111) (1935).

       Black’s Law Dictionary, p. 772 (7th ed. 1999).

       (Citations and punctuation omitted.) Parker v. Puckett, 129 Ga. App. 265, 267-268 (199 SE2d 343) (1973).

       (Citation and punctuation omitted.) Holmes v. Clear Channel Outdoor, 284 Ga. App. 474, 476 (2) (644 SE2d 311) (2007); see also OCGA § 13-2-2.

       See Lanier at McEver, L.P. v. Planners and Engineers Collaborative, 284 Ga. 204,208 (2) (663 SE2d 240) (2008) (contract phrasing acted as an indemnity or “hold harmless” clause even though those words did not appear in the parties’ agreement); George R. Hall, Inc. v. Superior

        Trucking Co., 532 FSupp. 985,993 (II) (B) (N.D. Ga. 1982) (the court must construe the meaning of an indemnity contract and “[n]o particular words or talismanic language is necessary’) (citation omitted).


author: Andrews, Judge.

text:
    A12A1419.
    A12A1420.
    DeKALB COUNTY v. BAILEY et al. THOMPSON v. BAILEY et al.
    (736 SE2d 121)
   Andrews, Judge.

Officer Torrey Thompson and DeKalb County appeal from the trial court’s order denying their motions for summary judgment on claims filed against them after the shooting death of Lorenzo Matthews. Joshua Bailey, Matthews’s minor child, and Nicola Hatten, Matthews’s mother and the executor of his estate, brought claims under 42 USC § 1983 and under state law for assault and battery, wrongful death, breach of duty, attorney fees, and punitive damages.* For reasons that follow, we affirm the denial of summary judgment to Thompson and reverse the denial of summary judgment to DeKalb County.

Thompson, a police officer with the DeKalh County Police Department, shot Lorenzo Matthews during an encounter at the apartment complex where Matthews lived. Thompson was indicted for the murder of Matthews, and the case went to the Supreme Court of Georgia on appeal from the trial court’s grant of Thompson’s motion to suppress his statements following the shooting, and the denial of his claim of immunity. The Supreme Court set out the facts as follows:

At approximately 3:15 a.m. on September 12, 2006, the DeKalb County Police Department (DKPD) received a 911 call reporting a stolen motor vehicle from an apartment complex. Officer R. L. Knock, Sergeant Berg, and Officer Torrey Thompson, among others, were called to the scene. Police interviewed the complainant, Earl McCord, who stated that his car, a Monte Carlo, had been stolen from outside his apartment. Police then interviewed Ms. Mullins, another resident of the apartment complex, who told police that the car had not been stolen, but had been involved in a hit-and-run car accident (involving the Monte Carlo and her car), and that the drivers and passengers of the Monte Carlo were friends and relatives of McCord. Ms. Mullins directed police to apartments 38 and 40, and told them Lorenzo Matthews, who was involved in the hit-and-run incident, lived there.
Officer Nunn, another policeman on the scene, recognized Matthews’ name and alerted his colleagues to the fact that Matthews was wanted for questioning regarding a shooting incident in a nearby apartment complex, as well as for assaulting a police officer. Mullins added that Matthews was known to be armed.
Under the supervision of Sgt. Berg, the police decided to interview Matthews. Sgt. Berg and two other officers went to the front door of apartment 38. He ordered Thompson and Knock to cover the back of the apartment building in case Matthews attempted to escape. Berg knocked at apartment 38 but was told Matthews was not there. Thompson and Knock noticed someone looking through the blinds of a window in apartment 40. When Berg went to knock at apartment 40, the rear door of the apartment swung open, and Matthews came out onto the porch. He pointed at Thompson with an object in his hand. Witnesses claimed the object was a cell phone. To both Thompson and Knock, the object looked like a weapon. However, in spite of an extensive search, a weapon was not found at the scene.
Knock ordered Matthews to stop and drop the object. Matthews began running down the staircase and jumped toward Knock, who fired at Matthews four times. Matthews then ran toward Thompson, still holding the object in his hand. Knock shouted, “Shoot him!” and, after hesitating briefly, Thompson fired two rounds at Matthews.
Matthews then ran away from Thompson toward a wooded area adjacent to the apartment complex; Thompson pursued on foot. Recognizing that the woods would afford Matthews a tactical offensive advantage, Thompson intermittently fired at Matthews as he ran. Thompson testified that he was fearful both for his life and for the lives of the residents of the apartment complex. When Matthews entered the wooded area, Thompson fired once more before Matthews jumped over a fence. At that point, Thompson ceased pursuit and called for backup. Matthews’ body was found later by a K9 unit on the other side of the fence. He had sustained eight gunshot wounds, two of which were found to be fatal.

State v. Thompson, 288 Ga. 165, 166-167 (702 SE2d 198) (2010).

The Supreme Court affirmed the trial court’s grant of Thompson’s motion to suppress statements he made during the investigation of the shooting and also affirmed the denial of Thompson’s claim of immunity, holding as follows:

To avoid trial under OCGA § 16-3-24.2, a defendant must show that he is entitled to immunity by a preponderance of the evidence. State v. Bunn, 288 Ga. 20 (701 SE2d 138) (2010); Bunn v. State, 284 Ga. 410, 413 (667 SE2d 605) (2008). We agree with the trial court that Thompson did not carry his burden of showing he was justified in using deadly force. State v. Bunn, supra.

Thompson, supra at 169.

After Bailey and Hatten (Plaintiffs, Appellees) filed this civil suit against Thompson and DeKalb County, defendants moved for summary judgment. The trial court denied both motions, and this appeal followed.

Case No. A12A1420

In this case, Thompson appeals the denial of his motion for summary judgment.

1. First, Thompson argues that the trial court erred in denying his motion on the 42 USC § 1983 claim because he is entitled to qualified immunity. That Code section provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

“[Cjlaims that law enforcement officials have used excessive force... in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” Graham v. Connor, 490 U. S. 386, 395 (109 SC 1865, 104 LE2d 443) (1989).

The test for determining whether a defendant is protected from suit by the doctrine of qualified immunity is the objective reasonableness of the defendant’s conduct as measured by reference to clearly established law. On a motion for summary judgment, if the applicable law was clearly established at the time the defendant acted [and it prohibited the action], the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.

(Citations omitted.) Porter v. Massarelli, 303 Ga. App. 91, 93 (692 SE2d 722) (2010).

The record shows that, at the crime scene walk-through, Thompson stated that Matthews came to the railing, leaned over, and had an “unknown object” in his hand. As Matthews ran away, he had one hand to his side and was holding his other hand against his body as though he was holding something. An eyewitness testified that when Matthews went out the door, he had a cell phone in his hand. Two other eyewitnesses said that when Matthews ran past them, he did not have anything in his hand.

The trial court stated that the evidence showed that, at the time of the shooting, Thompson did not know the identity of the person who came running down the stairs. And, even if it was reasonable to shoot as Matthews ran toward the other officer, there were issues of fact as to the reasonableness of resuming fire after Matthews was running away. Further, the court held that there was no probable cause to believe there was imminent danger when “Matthews was fleeing headlong, had dropped his cell phone (misperceived previously as a weapon), and was screaming for help.”

Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.

Tennessee v. Garner, 471 U. S. 1, 11-12 (105 SC 1694, 85 LE2d 1) (1985).

In this case, Thompson was never threatened with a weapon and did not have probable cause to believe that the man running away had committed a crime involving serious physical harm. The evidence is undisputed that Thompson never saw a weapon in Matthews’s hand; that Matthews never turned toward him while running away from him; and that Matthews never fired a shot at Thompson, or ever threatened Thompson. Further, “[w]henthe shooting occurred, clearly established law provided that an officer’s use of deadly force to apprehend a suspect violated the suspect’s Fourth Amendment rights where the suspect posed no immediate threat to the officer and no threat to others.” Porter, supra at 93. Accordingly, the trial court did not err in denying Thompson’s motion for summary judgment on the grounds that he was entitled to qualified immunity for plaintiffs’ claims under 42 USC § 1983.

2. Thompson also claims the trial court erred in denying his motion for summary judgment on the state law claims because he is entitled to official immunity.

[A]n officer who, in the performance of his official duties, shoots another in self-defense is shielded from tort liability by the doctrine of official immunity. One who acts in self-defense does not act with the tortious intent to harm another, but does so for the non-tortious purpose of defending himself. OCGA § 51-11-1. Because an officer does not lose the right to defend himself when he acts in his official capacity, we hold that an injurious work-related act committed by an officer, but justified by self-defense, comes within the scope of official immunity. Thus, if [Thompson] shot [Matthews] intentionally and without justification, then [he] acted solely with the tortious “actual intent to cause injury.” See Gardner v. Rogers, 224 Ga. App. 165, 169 (4) (480 SE2d 217) (1996). On the other hand, if Pie] shot [Matthews] in self-defense, then [he] had no actual tortious intent to harm him, but acted only with the justifiable intent which occurs in every case of self-defense, which is to use such force as is reasonably believed to be necessary to prevent death or great bodily injury to themselves or the commission of a forcible felony. OCGA §§ 16-3-21 (a); 51-11-1.

Kidd v. Coates, 271 Ga. 33, 34 (518 SE2d 124) (1999). “The phrase actual intent to cause injury has been defined in a tort context to mean an actual intent to cause harm to the plaintiff, not merely an intent to do the act purportedly resulting in the claimed injury. This definition of intent contains aspects of malice, perhaps a wicked or evil motive.” (Citations and punctuation omitted.) Id. at 33.

The trial court held that Thompson was not entitled to official immunity because he was not justified in shooting Matthews when Matthews was running away from him. For the reason set out in Division 1 above, we agree and affirm the denial of summary judgment on these grounds.

3. Likewise, in light of our holdings in Divisions 1 and 2, we agree with the trial court’s holding that Thompson was not otherwise entitled to summary judgment on the state law claims because he was not acting in self-defense or defense of others for purposes of OCGA §§ 16-3-20 (2) and 16-3-21 (a).

Case No. A12A1419

In this case, DeKalb County appeals from the trial court’s order denying its motion for summary judgment on plaintiffs’ claim under 42 USC § 1983. Plaintiffs alleged that the County was liable under section 1983 because the “policies, practices, or customs of DeKalb County, through the DeKalb County Police Department, were the moving force behind the constitutional deprivations suffered by Mr. Matthews.”

In Monell v. Dept. of Social Svcs. of City of New York, 436 U. S. 658 (98 SC 2018, 56 LE2d 611) (1978), the United States Supreme Court held that local governments could be sued directly under section 1983 as follows:

Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies. Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 “person,” by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental “custom” even though such a custom has not received formal approval through the body’s official decision-making channels.
On the other hand, the language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor — or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.

(Citations omitted; emphasis in original.) Id. at 690-691.

In City of Canton, Ohio v. Harris, 489 U. S. 378 (109 SC 1197, 103 LE2d 412) (1989), the Supreme Court further explained:

[A] municipality can be liable under § 1983 only where its policies are the “moving force [behind] the constitutional violation.” Only where a municipality’s failure to train its employees in a relevant respect evidences a “deliberate indifference” to the rights of its inhabitants can such a shortcoming be properly thought of as a city “policy or custom” that is actionable under § 1983. As Justice Brennan’s opinion in Pembaur v. Cincinnati, 475 U. S. 469, 483-484 [(106 SC 1292, 1300-1301, 89 LE2d 452)] (1986) (plurality) putit: “[M]unicipal liability under § 1983 attaches where •—• and only where — a deliberate choice to follow a course of action is made from among various alternatives” by city policymakers. See also Oklahoma City v. Tuttle, 471 U. S. [808,] 823 [(105 SC 2427, 2436, 85 LE2d 791) (1985)] (opinion of Rehnquist, J.). Only where a failure to train reflects a “deliberate” or “conscious” choice by a municipality — a “policy” as defined by our prior cases — can a city be liable for such a failure under § 1983.

Id. at 389. “Moreover, the identified deficiency in the training program must be closely related to the ultimate injury.” Id. at 391.

In this case, the trial court held that there was a pattern of unjustified shootings that was “some evidence” that the County was on notice of the need for further training on use of force. The trial court determined that the punishment appeared insufficient for certain incidents where there was found to be an excessive use of force. The court held that Lieutenant Kaulbach, the officer responsible for putting together the “use-of-force” training materials, had “unchecked authority” for four years without any effective supervisor and therefore was the final policy maker with regard to these issues. The court stated that the training slides prepared by Kaulbach, particularly the slide about shooting persons in the back and the inclusion of certain videos were “evidence from which a jury could conclude that the county inadequately trained its officers on use of force.” The court also found that Thompson received no discipline as a result of the shooting and was given a favorable performance appraisal for that time period.

4. First, we note that although the trial court found that Thompson received no discipline after the incident, the record shows that, as a result of the shooting, a determination was made to terminate Thompson. Thompson testified that he was called in and told that his termination was being recommended. As a result, Thompson immediately submitted a resignation letter.

5. Next, the trial court found that unjustified shootings and other instances of excessive force were some evidence that the County was deliberately indifferent to the need to improve its training. The record shows that there were nine unjustified shootings between the years 2002 and 2006. But there are approximately 1,000 police officers employed by DeKalb County. Without more than these bare figures, the court could not know whether this was notice of inadequate training. As the court states, there was one shooting in 2002, one in 2003, two in 2004, none in 2005, and five in 2006, one of which occurred after the Matthews shooting. Of the four that occurred in 2006, three were within three months of the Matthews shooting.

Further, the trial court stated that plaintiffs pointed out multiple instances in which excessive force was used and “insufficient discipline was meted out.” These incidents were not similar to the Matthews shooting, and indeed, none of the prior shootings or excessive use of force cases were similar to the shooting in this case. See Mercado v. City of Orlando, 407 F3d 1152, 1162 (11th Cir. 2005) (plaintiff cannot establish Monell claim because he cannot show that any of the prior incidents involved factual situations that are substantially similar to the case at hand); Gold v. City of Miami, 151 F3d 1346, 1351 (11th Cir. 1998) (holding that plaintiffs were not likely to succeed on the merits of their failure-to-train claim without proof that the City was aware of a prior incident in which constitutional rights were similarly violated); Watson v. Mayor &c. of Savannah, 223 Ga. App. 399, 401-402 (477 SE2d 667) (1996) (alleged deficiency “must be closely related to the ultimate injury,” because “[i]n virtually every instance where a person has had his or her constitutional rights violated by a city employee, a § 1983 plaintiff will be able to point to something the city could have done to prevent the unfortunate incident”).

Most importantly, of the fatal shootings that occurred in 2006, a grand jury found that all were justified except the Matthews shooting. See Wright v. Sheppard, 919 F2d 665, 674 (11th Cir. 1990) (no liability on the sheriff’s department for failure to train where there was “no evidence of a history of widespread prior abuse” to put the sheriff on notice that improved training or supervision was needed).

6. The trial court found that certain slides and videos used in the “use of force” training classes were evidence from which a jury could conclude that the County inadequately trained its officers, pointing out Thompson’s statement that he shot Matthews because that was what his training taught him to do. One of the slides stated: “suspect shot in the back should be the norm and not the exception.” Plaintiffs’ expert testified that this and other slides, by themselves, without questions or discussions, were not proper training. But Officer Inlow, who apparently taught the latest session that Thompson attended, explained in his deposition that subsequent slides in the presentation answered or otherwise addressed those statements. Inlow said: ££You’ve got to explain the slide.” He was asked: ££You never taught anyone that it was okay to shoot a suspect in the back?” Answer: “No.” And, “I explained that scenario based on — to each group so they would understand I’m not telling people, guys running, you shoot him in the back.” Rather, the training alerted officers to the fact that a fleeing suspect who is armed can turn and shoot before an officer can respond and pull the trigger; therefore, by the time the officer shoots, the person will have turned back around and any shot fired would hit them in the back.

Lieutenant Kaulbach, who developed the training materials, testified at her deposition that the slide stating “suspect shot in the back should be the norm and not the exception,” was taught under the scenario of a person whom the officers “knew to be armed with a firearm.” Moreover, all of the other officers who taught the in-service training denied that this was ever taught as “it was okay to shoot people in the back.”

Officer Thompson’s expert testified that he reviewed the County’s “use of force” policy and found it to be “consistent with those of every other police department and law enforcement agency” that he had reviewed. Plaintiffs’ expert criticized the training to the extent that he thought there was no further instruction given, which was not the case. Therefore, although Thompson stated that he shot Matthews because that is what his training told him to do, the record shows that the training was not incorrect. That Thompson was not justified in his belief that Matthews could be armed and could pose a threat to him or others, does not render the training invalid. ££[T]he focus must be on adequacy of the training program in relation to the tasks the particular officers must perform,” and not merely on the training deficiencies for a particular officer. City of Canton, 489 U. S. at 390. “It is thus irrelevant what training each specific officer present at the scene was given or retained.” Lewis v. City of West Palm Beach, Fla., 561 F3d 1288, 1293 (11th Cir. 2009).

7. Finally, the trial court points to evidence submitted by plaintiffs that the County did not provide night-time or “hands-on” training on “when to shoot.” We note that there was evidence of simulation or scenario training at a place identified only as Brook Run. There is also evidence that the Commission on Accreditation for Law Enforcement Agencies re-accredited the DeKalb County Police Department for the sixth time in December 2007, after reviewing its policies, procedures and training.

In any event, it is not sufficient to point to instances where the County’s training or facilities may be lacking. The burden is on plaintiffs to show a “deliberate or conscious choice” or such “deliberate indifference,” by pointing to evidence that “the municipality knew of a need to train and/or supervise in a particular area and the municipality made a deliberate choice not to take any action.” Gold, supra at 1350. “[I]t is not sufficient to prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip (that officer) to avoid the particular injury-causing conduct.” Russell v. Barrett, 296 Ga. App. 114, 122 (673 SE2d 623) (2009), citing City of Canton v. Harris.

Decided November 19, 2012

Reconsideration denied December 12, 2012

Brenda A. Raspberry, Duane D. Pritchett, for appellant (case no. A12A1419).

Atkins&Fife, William J. Atkins, for appellant (case no. A12A1420).

This high standard of proof is intentionally onerous for plaintiffs; imposing liability on a municipality without proof that a specific policy caused a particular violation would equate to subjecting the municipality to respondeat superior liability — a result never intended by section 1983. As the Supreme Court has explained, to adopt lesser standards of fault and causation would open municipalities to unprecedented liability under § 1983. In virtually every instance where a person has had his or her constitutional rights violated by a city employee, a § 1983 plaintiff will be able to point to something the city “could have done” to prevent the unfortunate incident. Thus, permitting cases against cities for their “failure to train” employees to go forward under § 1983 on a lesser standard of fault would result in de facto respondeat superior liability on municipalities.

Gold, supra at 1351, n. 10.

Accordingly, we conclude that the trial court erred in finding that any or all of the above incidents were sufficient to show that the County failed to train its officers to such an extent that it amounted to “deliberate indifference to the rights of persons with whom the police come into contact.” City of Canton, 489 U. S. at 388. Therefore, the trial court erred in denying DeKalb County’s motion for summary judgment on plaintiffs’ claim under 42 USC § 1983.

Judgment affirmed in Case No. A12A1420.

Judgment reversed in Case No. A12A1419.

Doyle, R J., and Boggs, J., concur.

Fellows LaBriola, Stephen T. LaBriola, Kevin P. Weimer, for appellees.

       They did not pursue the claims for assault and battery, wrongful death, or punitive damages against DeKalb County.

       As a result of the Supreme Court’s holding, the State did not proceed with the criminal case against Thompson, and the charges were nolle prossed.

       Further, as was pointed out at the motion hearing, this allegation was based on business records produced by the County that merely identified the incidents in which it had been determined that excessive force whs used and stated the punishments assessed. There was no deposition testimony or any other evidence submitted from which a determination could be made that the punishments were not appropriate.


author: Adams, Judge.

text:
    A12A1621.
    CITY OF COLUMBUS v. CIELINSKI.
    (734 SE2d 922)
   Adams, Judge.

Mary Jo Cielinski sued the City of Columbus for nuisance arising from its allegedly inadequate drainage system and failure to properly maintain its drainage system, resulting in repeated flooding of her land and her home. Cielinski also asserted a claim for breach of contract. After the trial court denied the City’s motions for summary judgment on both claims, the City sought an interlocutory appeal. We granted the application, and now affirm in part and reverse in part.

Cielinski purchased her house in Columbus, Georgia in 1985. In 1990, Cielinski’s house flooded in the middle of the night during a heavy rain. In 1991, the City replaced a storm drainage pipe that ran along Cielinski’s side yard. During that process, it was revealed that the Cielinski house encroached on the City’s drainage and utility easement and that a sanitary sewer line was located in that easement, under part of the Cielinski house. The parties entered an agreement to resolve any potential problems relating to the City’s right to require that any portion of the Cielinski house be removed from the easement. The agreement provided as follows:

In consideration of the City’s agreement not to require the removal of the structure from the described easement, Owner... agrees and covenants to release the City from any and all future liability or damage to the described encroaching structure caused by any legitimate and lawful entry by the City ... on the easement to construct, repair, replace, alter or service any drains, pipes, or any other structure installed by the City or caused by any failure or rupture of pipes for any reason whatsoever. The City hereby agrees that it shall exercise reasonable care to avoid unnecessary damage to the property described herein in the event of such repair, replacement, alteration or servicing to the easement shown on the plat. If damage to the property occurs the city agrees to restore to the best of its ability such damaged property.

On June 23, 2005, Cielinski’s house and yard were flooded after a rainstorm. On June 22, 2006, Cielinski sued the City for nuisance and injunctive relief, alleging that the City had negligently failed to maintain the City’s drainage system, thereby causing her property to flood, resulting in damage to her house and land. Cielinski further alleged that the City negligently constructed, maintained and operated the drainage system, thereby creating and maintaining a nuisance and a continuing nuisance. Cielinski sought all applicable measures of damages, including general damages, punitive damages, litigation expenses and injunctive relief that would prohibit the City from allowing further water to flow onto her property. The City filed a motion for summary judgment, arguing that Cielinski’s damages are limited by the 1991 agreement to the restoration of her property to the best of the City’s ability, punitive damages are not allowed against a municipality, and Cielinski is not entitled to litigation expenses because a bona fide controversy exists.

Cielinski amended her complaint, alleging that the City’s drainage system near her house was inadequate to handle the flow of water and adding a claim for breach of the 1991 agreement. The City filed a renewed motion for summary judgment, arguing that the alleged nuisance was permanent and therefore barred by the four-year statute of limitation. The City also argued that the 1991 contract was not applicable to the 2005 flooding damage.

In response to the motions for summary judgment, Cielinski offered evidence of numerous complaints made to the City about clogged inlets and gutters and flooding and maintenance and repair attempts made by the City to the drainage system between 1989 and 2005. According to Cielinski, the 2005 flood damaged her garage and her house and caused mold to grow in her house. She produced photographs showing this alleged damage.

The trial court granted the City’s motion for summary judgment with respect to punitive damages, but denied it without explanation as to all other claims by Cielinski, including her claim for litigation expenses. In a separate order, the trial court denied without explanation the City’s renewed motion for summary judgment.

In order to prevail on a motion for summary judgment under OCGA § 9-11-56, the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment, the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation and punctuation omitted.) Weller v. Blake, 315 Ga. App. 214, 215 (726 SE2d 698) (2012).

1. The City contends that the trial court erred in denying its motion for summary judgment because Cielinski’s nuisance claim is barred by the applicable four-year statute of limitation set forth in OCGA § 9-3-30 (a). The City takes the position that Cielinski’s claims are based solely on the installation of the pipes and inlets near her home in 1991 and that the statute of limitation began to run on her permanent nuisance claim at that time.

In a factually-similar case, the Supreme Court of Georgia addressed the distinction between a permanent and a continuing nuisance. City of Atlanta v. Kleber, 285 Ga. 413 (677 SE2d 134) (2009). In Kleber, the homeowners contended that the defendants had failed to properly maintain a drainage pipe and culvert near their property, resulting in their home being flooded during heavy rains. Id. The parties agreed to be bound by the findings of a court-appointed special master who determined that the homeowner’s property was flooding because the pipe that drained the basin where the residence was located was not large enough, but that it was probably adequate at the time it was installed many decades earlier. Id. at 415. The trial court granted summary judgment to the defendants, and the Supreme Court affirmed.

The Court stated that “[t]he classification of an alleged nuisance as continuing in nature directly controls the manner in which the statute of limitations will be applied to the underlying claim.” Kleber, 285 Ga. at 416 (1).

A nuisance, permanent and continuing in its character, the destruction or damage being at once complete upon the completion of the act by which the nuisance is created, gives but one right of action, which accrues immediately upon the creation of the nuisance, and against which the statute of limitations begins, from that time, to run. Where a nuisance is not permanent in its character, but is one which can and should be abated by the person erecting or maintaining it, every continuance of the nuisance is a fresh nuisance for which a fresh action will lie. This action accrues at the time of such continuance, and against it the statute of limitations runs only from the time of such accrual.

(Citation and punctuation omitted.) Id.

The Court ruled that to the extent the homeowners were complaining about the mere presence of the culvert and pipe as a nuisance due to improper installation, their nuisance claim was permanent in character and was barred by the statute of limitation. Kleber, 285 Ga. at 416-417 (1). To the extent that the homeowners were contending that the culvert and pipe had not been properly maintained, their nuisance claim was continuing in nature, allowing them to contend that the maintenance of the pipe and culvert within the four years preceding their lawsuit created a nuisance. Id. at 417 (1). Because the special master found that the pipe had been kept in good working order and free of clogs and debris, the Court concluded that the pipe had been properly maintained, precluding a claim on that basis. Id. at 418 (2).

The homeowners in Kleber also claimed that the city had created a nuisance by maintaining a series of underground pipes that ultimately fed the pipe and culvert. Id. at 418 (3). Citing Hibbs v. City of Riverdale, 267 Ga. 337, 338 (478 SE2d 121) (1996), the Court in Kleber recognized that “where a municipality negligently constructs or undertakes to maintain a sewer or drainage system which causes the repeated flooding of property, a continuing, abatable nuisance is established, for which the municipality is liable,” but held the city was not liable in that case because the homeowners had not shown that the city had taken steps to maintain the culvert, the drainage pipe or any other pipes leading to the culvert. Id. at 419 (3).

Here, as in Kleber, to the extent that Cielinski asserts a claim for permanent nuisance based on the installation of the drainage pipe in 1991, that claim is barred by the applicable four-year statute of limitation. See Kleber, 285 Ga. at 417 (1). But Cielinski’s claim for continuing nuisance based on the City’s negligent or improper maintenance of the drainage system is not similarly barred. Cielinski may therefore proceed with her claim that the City’s maintenance of the drainage system within the four years prior to filing her initial complaint created a nuisance. See id. Unlike the homeowners in Kleber, Cielinski has offered evidence of numerous complaints received by the City regarding the drainage system and evidence that maintenance of the system was undertaken by the City. Thus, summary judgment was properly denied on Cielinski’s continuing nuisance claim.

The City contends that a recent Supreme Court decision on this issue requires a different result. Oglethorpe Power Corp. v. Forrister, 289 Ga. 331 (711 SE2d 641) (2011). In Forrister, the Court granted certiorari to consider “when the statute of limitation began to run in this action claiming that noise from a power plant operated by a public utility constitutes a nuisance.” Id. Relying on the Restatement (Second) of Torts, § 930, cmt. (c), the Court concluded that the noise from the plant was a permanent nuisance because it resulted from a “substantial and relatively enduring feature of the plan of construction or ... an essential method of operation,” and thus could not be abated. Id. at 335 (2). As a result, the plaintiffs’ action would be barred unless some new harm that was not previously observable occurred within four years prior to the filing of their complaint. Id. at 336 (3). Because evidence existed that there was an adverse change in the nature, as opposed to the degree, of the noise and vibration coming from the plant, the defendants were not fully entitled to summary judgment on the nuisance claim filed against them. Id. at 337 (3), (4).

In Forrister, the Court analogized the noise from the power plant to the inadequate culvert and pipe in Kleber, noting that its decision in Kleber regarding the installation of the drainage system was supported by the same language from the Restatement — a “substantial and relatively enduring feature of the plan of construction or ... an essential method of operation,” is usually not abatable. Id. at 335 (2). The Court also noted that its holding in Kleber regarding the improper maintenance of the culvert and pipe reflected “an improper and unnecessary method of operation” that “could be averted at slight expense” and was thus a continuing nuisance. Id. The same could be said of the improper maintenance alleged in this case. Thus, the Forrister decision does not alter our conclusion that summary judgment was properly denied on Cielinski’s continuing nuisance claim.

2. The City contends that the trial court improperly denied its motion for summary judgment on Cielinski’s claim for breach of the 1991 agreement. The City’s primary argument is that the agreement does not apply in this case.

Initially, we note that

the construction of a contract is a question of law for the court. And the construction of a contract involves three steps. The first step is to decide whether the language of the contract is clear and unambiguous. If so, the contract is enforced according to its plain terms, and the contract alone is looked to for meaning. Second, if the language of the contract is ambiguous in some respect, the rules of contract construction must be applied by the court to resolve the ambiguity. And finally, if ambiguity remains after applying the rules of construction, “the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.” Indeed, “the cardinal rule of contract construction is to ascertain the intention of the parties.”

Decided November 30, 2012

Reconsideration denied December 12, 2012

Page, Scrantom, Sprouse, Tucker & Ford, James C. Clark, Jr., Alan G. Snipes, for appellant.

James D. Patrick, Jr., for appellee.

(Citations omitted.) Bd. of Commrs. of Crisp County v. City Commrs. of the City of Cordele, 315 Ga. App. 696, 699 (727 SE2d 524) (2012).

The language of the 1991 agreement is clear and unambiguous. The purpose of the agreement is to resolve any potential problems relating to the City’s right to require that some portion of the Cielinski house be removed from its drainage and utility easement. The City agrees to exercise reasonable care to avoid unnecessary damage to the Cielinski property in the event it must enter the easement to construct, repair, replace, alter or service any drains, pipes or other structures installed by the City. Cielinski is not seeking damages caused by the City while it was repairing or servicing drains or pipes in the easement area. And the agreement, by its terms, does not cover damages stemming from improper or negligent maintenance of the drainage system as a whole. Thus, summary judgment should have been granted on Cielinski’s claim for breach of contract.

Judgment affirmed in part and reversed in part.

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