An v. Active Pest Control South, Inc.
313 Ga. App. 110
| Ga. Ct. App. | 2011Background
- An Ya An sued Active Pest Control South, Inc. for negligence and breach of contract over termite damage after a January 13, 2004 contract for treatment, monitoring, and repair of new termite damage.
- The contract expressly covers new damage caused by subterranean termites and is assignable to subsequent home owners.
- Active's August 2006 inspection reported no active infestation but noted prior termite damage and disclaimed responsibility for hidden damage.
- An discovered additional termite damage after closing and engaged experts who opined damages occurred post-2004 and estimated repair costs.
- Active moved to exclude expert opinions under OCGA § 24-9-67.1 and sought summary judgment; the trial court granted summary judgment without ruling on admissibility.
- The Court of Appeals vacated the summary judgment, remanding to resolve the admissibility of Nolan and Chulick's opinions before readdressing summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper without ruling on expert admissibility | An argues admissibility must be decided first. | Active argues admissibility is separate and not necessary before summary judgment. | Remanded to resolve admissibility before reconsidering summary judgment. |
| Whether Nolan and Chulick's opinions are admissible under OCGA § 24-9-67.1 to prove post-2004 termite damage and quantify damages | Expert testimony would show post-contract damage and its extent. | Opinions are unreliable and should be excluded. | Admissibility to be decided below; opinions could preclude summary judgment if admissible. |
| Whether, if admissible, the expert opinions create a genuine issue of material fact on damages | Nolan and Chulick can show post-2004 damages and costs. | Without admissible expert proof, no triable issue exists. | If admissible, these opinions could allow a jury to find post-2004 damages and value; summary judgment not warranted. |
| Whether the cross-appeal regarding notices of nonparty fault is moot | Cross-appeal may raise issues depending on summary judgment. | Issues may be moot if summary judgment is granted. | Dismissed without prejudice to reassert later; not decided at this time. |
Key Cases Cited
- Durden v. Orkin Exterminating Co., 189 Ga. App. 479, 376 S.E.2d 376 (Ga. App. 1988) (negligence damages must be proven proximately caused)
- Strength v. Lovett, 311 Ga. App. 35 (Ga. App. 2011) (summary judgment standard: no genuine dispute of material fact)
- Cowart v. Widener, 287 Ga. 622 (Ga. 2010) (de novo review of summary judgment; record viewed in nonmoving party's favor)
- Lau’s Corp. v. Haskins, 261 Ga. 491 (Ga. 1991) (summary judgment standard; absence of evidence can support SJ)
- Mason v. Home Depot USA, Inc., 283 Ga. 271 (Ga. 2008) (Daubert gatekeeper role; reliability and methodology in expert testimony)
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (S. Ct. 1993) (trial judge ensures reliability and relevance of expert testimony)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (S. Ct. 1999) (gatekeeper extends to all expert testimony)
- General Electric Co. v. Joiner, 522 U.S. 136 (S. Ct. 1997) (abuse of discretion standard for admissibility decisions)
- Condra v. Atlanta Orthopaedic Group, 285 Ga. 667 (Ga. 2009) (state gatekeeper standards align with Daubert for Georgia)
- Ford Motor Co. v. Gibson, 283 Ga. 398 (Ga. 2008) (timing of ruling on expert motions under OCGA § 24-9-67.1)