Facts
- A car drove through the front doors of a Trader Joe’s store in 2016, injuring a customer on the sidewalk. [lines=66-69].
- The injured customer settled his lawsuit against Trader Joe’s and the Landlords for $2.5 million, with each party paying $1.25 million. [lines=78-81].
- The trial court determined the incident resulted from negligent construction and maintenance of the shopping center's common areas and entered judgment against the Landlords. [lines=84-89].
- Trader Joe’s had an excess commercial general liability policy, with a self-insured retention of $350,000, and tendered the Quirk action to the Landlords. [lines=171-175].
- The trial proceeded on cross-complaints for indemnity, with the Landlords arguing Trader Joe’s had not properly insured them as additional insureds. [lines=242-245].
Issues
- Did the trial court err in finding that the Landlords were actively negligent and responsible for indemnifying Trader Joe’s? [lines=268-270].
- Was Trader Joe’s required to procure a policy covering all damages without a self-insured retention impacting the Landlords? [lines=387-389].
- Did the trial court properly award attorney's fees to Trader Joe’s in the indemnity dispute? [lines=432-434].
Holdings
- The trial court’s finding of active negligence by the Landlords was upheld, confirming their responsibility for indemnifying Trader Joe’s. [lines=268-272].
- Trader Joe’s was permitted to self-insure under the lease provisions, and the self-insured retention did not breach its insurance obligations to the Landlords. [lines=400-402].
- The award of attorney’s fees to Trader Joe’s was affirmed as appropriate in the context of the prevailing judgment. [lines=438-439].
OPINION
*1 Court of Appeals
of the State of Georgia
ATLANTA,____________________ November 22, 2024 The Court of Appeals hereby passes the following order:
A25I0081. CHRIS ALLEN TUCKER, JR. v. MARK MADDOX et al.
In this defamation action, defendant Chris Tucker, Jr., filed this timely application for interlocutory review of a trial court order granting the plaintiffs’ “Motion for New Trial.” In that order, the trial court set aside a prior order granting Tucker’s motion to strike the lawsuit pursuant to Georgia’s anti-Strategic Lawsuits Against Public Participation statute, OCGA § 9-11-11.1, and thereby effectively denied Tucker’s OCGA § 9-11-11.1 motion to strike. See Planet Ins. Co. v. Ferrell , 228 Ga. App. 264, 266 (491 SE2d 471) (1997) (“[P]leadings, motions and orders are to be construed according to their substance and function and not merely as to their nomenclature . . . .”). Under OCGA § 9-11-11.1 (e), “[a]n order granting or denying a motion to dismiss or a motion to strike [under OCGA § 9-11-11.1] shall be subject to direct appeal in accordance with subsection (a) of Code Section 5-6-34.” Accord OCGA § 5-6-34 (a) (13) (rendering “[a]ll judgments or orders entered pursuant to Code Section 9-11-11.1” directly appealable). The trial court’s order therefore is directly appealable under OCGA §§ 5-6-34 (a) (13) and 9-11-11.1 (e).
“This Court will grant a timely application for interlocutory review if the order complained of is subject to direct appeal and the applicants have not otherwise filed a notice of appeal.” Spivey v. Hembree , 268 Ga. App. 485, 486, n. 1 (602 SE2d 246) (2004). Accordingly, this application for interlocutory review is hereby GRANTED. See id. Tucker shall have ten days from the date of this order to file a notice of appeal in the trial court. See OCGA § 5-6-34 (b). If Tucker already has filed a notice of appeal in the trial court, then he need not file a second notice. The clerk of the trial court is *2 DIRECTED to include a copy of this order in the record transmitted to the Court of Appeals.
Court of Appeals of the State of Georgia 11/22/2024 Clerk’s Office, Atlanta,____________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk.
