*1 11 July 16, Decided July Rehearing 29, denied appellant. Billy Right, L. for Doyel,
Robert Baldwin, Assistant H. Attorney, B. B. District Beverly Hayes, Attorney, appellee. for District v. ALLEN et al. AGENCY BOB LAIRSEY INSURANCE
71848. MUTUAL CASUALTY NATIONAL 71849. PENNSYLVANIA ALLEN et al. INSURANCE COMPANY (348 SE2d Judge. Beasley, Lairsey Bob H. Allen went to the February Lewis
On from Penn- liability coverage PIP and Agency purchase Insurance applica- Company. The Casualty Insurance sylvania National Mutual spouse’s space L. Allen and the tion H. bore form for the supplemental application The signature was left blank. coverage marked to or “no-fault” was acceptance rejection excess signatures coverage rejected. that It contained the indicate “Evelyn “L. Allen” Allen.” H. and July on
Lewis Allen involved in an automobile collision party. paid Penn Allen and later reached a settlement with other $5,000 January, requested in basic PIP The Allen following benefits. $45,000, PIP his ap- retroactive to date of coverage additional plication, through request refused Lairsey agency. Penn and copy supplemental purportedly signed sent application Allen of the however, by they The his wife. Allens claimed had them, PIP before it was sent to bene- application never seen Allen, fits been and that the signatures had not to Lewis They expert application handwriting were theirs. copy compare copies document and it with their amine the of the expert signatures were signatures. agreed known The company those of the The insurance was notified letter Allens. signatures expert forger- that a named had determined that the premium coverage ies. PIP tendered additional Lairsey agency, rejected. against filed suit Penn and Allens application supple- on the forged their alleging signatures optional PIP PIP benefits coverage seeking mental additional attorney $45,000, plus statutory penalty fees the amount (b), $100,000 “punitive damages.” under OCGA 33-34-6 benefits, $11,250 $45,000 PIP statu- the Allens jury verdict awarded $19,350 tory $4,400 attorney against fees Penn and “tort” penalty and both defendants. damages against
Case No. 71848
reversal,
requires
we
1. Because
find that enumeration
error
verdict,
question regarding
validity
we
not reach the
do
*2
a
although we believe the verdict would be correct as matter of law
misinterpreted
and
so that
the
is
judgment
not reflective of it.
the
if it
in
verdict of
should
can be done
accor-
Dixon,
9-12-4;
Maloy
dance
law.
51-12-12.
v.
with the
OCGA
127
§§
(193
(6)
151,
(1972); Pepsi
Ga. App.
SE2d
Cola v. First Nat.
(1)
Columbus,
(281
579) (1981).
Bank
248 Ga.
SE2d
of
requires
2. The error which
a
to
presenta
new trial relates
the
tion of
of
plaintiff signed
evidence relevant
to the issue whether
the
supplemental application rejecting optional
That
coverage.
was at the
heart of this case.
It
not a case
whether
rejection
the
form complies
concerned,
law
its
the
insofar as
content
as was
Co.,
Douglas
(333
v.
Fire &c.
This, however, ais case wherein the issue was the in- whether signed rejection not, sured form. He agent said he did and the and did, the employee he said for both himself and his wife. Thus we do problems come credibility recollection, back to the because the require law does not the insured’s be witnessed or no- tarized. And even conclusive, that could in some instances not be al- though it be firmer proof would of actual signature.
Since recollection credibility aspects ques- crucial sign?” tion “Did he all the circumstances of occasion when in- agent’s sured went to the important office became and relevant. The evidence was that he was without insurance he because had chosen previous to his policy agency continue and the had called him several times process application to come to a new with another insurer so he riding would not be around coverage. without He in, him, had to come agency to because it could not application submit his signing. without February May occurred on trial The event had ordinary previously. years transaction 7, 1983, It involved an over two agent long purchasing stand- the insured’s of ing, insurance from auto Understandably, particularly event. it was memorable so precisely transpired equivocal about what the insured was somewhat he did not occasion, that he was certain that on that sign but he testified optional supplemental application rejecting PIP, himself employee, agent him. and his his wife was not with or for who daugh- daughter of insured’s his and the wife of brother who was ter’s signed positively Thus, husband, he the form. rec- testified that credibility pre-eminent. ollection complaint that no one had ever Plaintiff had asserted plained optional coverage him, testified, he he stated when unresponsive thing. the same On in an examination answer to cross-examination agent, questioned him cir- his counsel about plaintiff in con- occasion when came to the office cumstances policy. obtaining the course of the direct nection with When you explain asked, “Did the different kinds of cover- examination age objection him?”, was raised and the court refused to allow question Voyager subject ruling that oral or the matter because of the proper rejection signed for a conversations cannot be substituted *3 explained, for Counsel was form. the wished establish that the matter purpose testimony impeaching of insured’s that it was not the plained attacking memory. his
Obviously, jury explained, if that it there would the believed was testimony undermining of insured’s he had not be a serious the that successfully signed the document. “When a witness shall be contra- matter, as to a his shall be dicted for material credit as to other matters (a). jury.” explained options, agent § If the OCGA 24-9-85 testimony agent’s employee’s it would lend credence to the that insured thereafter and his explain signed rejecting them. It would also testimony before, inas- that never saw document the insured’s he just give read it as it rise to the inference that he did not much would agent upon pay or it after the whom he relied attention to hurry options. was, all, in time out He after since he taken in- of his work to come the insurance. It would weaken testimony only he because it would mean not that sured’s respect wrong to whether or was not to be believed with remembered actually respect explanation signed. given with to whether he but also really agent persuade jury insured could not If the could that particulars correctly point respect on one remember might occasion, as It is true to do so on another well. that able rejection, what he was irrelevant the issue jury signing. was called it was relevant here on the issue but upon credibility, agent, to decide issues of and the recollection being fraud, produce who sued entitled to evidence impeach testimony context which would tend to that he insured’s sign very did not the document. This is crucial for the reason that the proof op- is in law conclusive insured knows of Nixon, St. Paul Fire &c. Co. v. rejects tions them. Ins. Ga. (314 215) (1984); Grange Hall, SE2d Mut. Cas. Co. v. 173 Ga. (326 497) (1985). App. 382 SE2d unnecessary It remaining
3. to address the of er- enumerations ror.
Case No. 71849 reasons, 1. For in foregoing we reverse Case Number 71849 also. complaint The claim allege must with particu- fraud
larity is without merit. Failure to assert a particular- fraud claim with ity required by (b) as OCGA 9-11-9 does not warrant automatic dis- complaint. missal of party’s opposing remedy move particular Gainesville, more statement. Irvin v. Lowe’s 165 Ga. (302 App. (1983); McCollum, SE2d Cochran 13) (1974). Judgments Banke, reversed in case J., nos. 71848 and 71849. C. McMurray, J., J., Birdsong, Sognier P. P. JJ., and Pope, concur. Deen, J., Benham, JJ., Carley P. in part concur and dissent part. Presiding Judge, concurring part and dissenting part.
Deen, As to Division 1 the Majority Opinion returned its verdict in this as follows: “We the jury find on plaintiff behalf of the Lewis H. $80,000.00 amount of:
$45,000.00 PIP
$11,250.00 25 Penalty % 4,400.00 Atty.
$ Fees
$60,650.00 $19,350.00 Damage Tort against each Defendant 1/2 $80,000.00”
The trial pursuant verdict, judge, $80,000 rendered an judg- ment. The majority opinion in in part: Division states believe “[W]e the verdict would be correct as a matter of law and was misinter- preted so the judgment is not reflective it.” This is said with- to as to enable one methodology so providing out mathematical accuracy of the conclusion. evaluate the arithmetical attention, they least, blush, as questions At first three need at create cause for concern:
(a) damages liable Lairsey agency punitive be held Could the (c), penalty provided as the that section under OCGA 33-34-6 § fit only agency The seem to the cate- applies to “insurers?” does not as an insurer. gory
(b) company jointly held liable with the As the insurance recovery The only theory plaintiff, would be in tort. agency, $45,000 however, proved any except the pleaded damages neither nor in PIP of contract. How stands this feature of the benefits breach and judgment? verdict
(c) Damages sought punitive damages as under OCGA 51- punitive For an under this code section must damages 12-5. award Since latter compensatory damages? there also be an award of exist, how stands the former? does opinion on majority
Since the does not elaborate the verdict “The if it can say, than verdict of the should be other to law,” done in this dissent likewise will not be accordance with thoughts pro- majority deal further with it. Had the outlined its detail, enlightenment questions on this matter more vided (b), (c) (a), disappear. could well shown Majority Opinion
As to Division solely opinion requires The trial in this case based majority a new on 14. The enumeration reads as follows: Enumeration Error latter on issue “The court to cross-examination refusing erred allow (Em- Plaintiff.” optional coverages of whether the to supplied.) particular point argued relating in the brief phasis Lairsey’s enumeration of error is “that counsel could not cross- this cross-examination, coun- Actually examine Allen.” when as to prohibited plaintiff’s sel was not from recollection testing Appar- signed application. he had or the no-fault whether ently appeared counsel elected not to do so. The cross-examination be full and within the discretion of the court. limiting Lairsey’s
There is no enumeration of error Lairsey surrounding cir- upon counsel the direct-examination of as to Lairsey trial limited direct-examination of judge cumstances. The Co., Voyager Colwell v. Cas. Ins. under (1983). error, however, directly only to goes enumeration majority opin- prohibition of the cross-examination of Allen. error dif- alleged degrees has to read seemingly
ion rewritten limitation of the di- ferently by reversing specifically on the *5 Lairsey by counsel, own to which no error was rect-examination enlarge upon court an error enumerated. We enumerated. This cannot alleged been should merated and a case on an error which has not enu- not reverse parties. by assigned must as error We take accordingly. as we find it act paragraph generally agree
I with what is said in the last majority opinion relating to the failure to assert a fraud claim. majority sharply disagreeing that the case should
While my 14, Error be reversed on Enumeration of should it belief that this court give jury in as to whether the verdict of the serious attention present its majority state can be in accordance with the law. Since the validity reversing judg- case, this verdict and day. respectfully therefore, I, ment must await another dissent. Judge joins opinion I am authorized to Benham state this Judge Carley joins opinion only and that as to the remarks relating opinion. majority Division of the July Decided July
Rehearing denied (case 71848). Benjamin appellant Smith, Jr., for no. 71849). (case George appellant Skene, N. no. appellees. Strickland, BeVane, C. Been B. Michael 71860. STOVER v. WATSON et al. Presiding Judge. Deen, Upon entering appellee Wendy’s one of International’s restau- appellant, po- friend, Stover,
rants with a tato Ernest ordered a baked although that, advertised, told the cashier the item exchange appellant was not then available. A verbal between the brought manager, appel- ensued, cashier then which the assistant appellant asking Watson, lee to the counter and resulted Watson’s premises. appellant comply request, to leave did not with the placed but instead waited at the counter while his friend’s order was joined dining him filled and then in the area. He was arrested on premises shortly trespass, resisting the and arrest, thereafter for criminal disorderly charges conduct. The criminal dismissed after hearing County, appel- in the Recorder’s Court of Chatham subsequently damages against appel- lant commenced this action for alleging illegally lees, The had been arrested. See OCGA 51-7-1.
appellees eventually summary judg- answered and moved for