*1 material each of the statement of and concise separate, short elude a issue to be genuine exists a there it is contended as to which facts of Rule 6.5 and the between mandate exists tried.” No conflict of ma- filing statement rather, requirement 9-11-56; that rule’s § contrary to the Code to and in issue is addition facts terial 6.5, not con- and we do not observe Rule appellant did The provision. by striking appel- in the rule putting teeth court’s sider the trial suffi- That reason alone is of discretion. be an abuse response to lant’s address the and we do not judgment, court’s cient to sustain conflicts with of Rule 6.2 30-day requirement contention opposing affida- 9-11-56, sufficiency the issue of or OCGA § vits. appeal pursu- damages for frivolous
2. 5-6-6 is denied. ant to OCGA § JJ., Beasley, concur. Benham
Judgment affirmed. December Decided Lane, Joe
Ronnie appellee. Epps,
Richard A. COMPANY INDEMNITY 72267. INTERNATIONAL v. COACHMAN. Judge.
Carley, grand household of his resided August mother, owned a vehicle which Rambo. Mrs. Rambo Mrs. Willie Mae Indemnity Com by appellant-defendant International was insured ap in 1980. The policy for this pany. applied She had in 1980 did not for Mrs. Rambo’s submission plication presented form (b), as that former OCGA 33-34-5 comply requirements with the v. State in Jones statutory provision subsequently was construed 623) (1980) Co., Ins. Farm &c. Ga. 709 Flewellen v. Atlanta Cas. (c), reliance former OCGA apparent of its Mrs. Rambo written notification
pellant had in 1981 mailed to PIP under her No provide optional coverages offer forthcoming from Mrs. had been timely response to this notification Rambo. seriously injured August appellee-plaintiff
On by another. He received that was owned wreck of an automobile $5,000 under the automobile owner’s in basic no-fault 9,1982, sent to letter was policy. On March demand of both legal representative he was the attorney who stated that “wish to ac- expressed This his clients’ pellee and Mrs. Rambo. letter . . . optional benefits and statutory continuing offer of cept [the] bene- optional personal injury protection the maximum of] election $50,000.00.” requested letter further fits of Counsel’s which the possible the exact amounts “[p]lease let us know as soon as *2 in required to the referenced named insured have been would benefits, we will im- to obtain such and period periods time or time as our uncondi- accept Please this mediately you. remit said sums to only your specification of the tender of such sums. We await tional (Emphasis supplied.) in place your the cash hands.” amount due to include the informa- Appellant’s response to this demand letter did (Empha- would have cost $150.00.” tion that the “additional supplied.) unequivocally sis stated that it was de- appellant nying appellee’s optional for maximum no-fault benefits on claim rejected the basis that Mrs. Rambo had been offered but had that As coverage. unequivocal any coverage, the result of this denial of Mrs. Rambo did not undertake to effect an actual tender of to $150
In 1982, October of appellee against ap filed the instant action pellant, benefits, seeking optional to recover maximum a penalty fees, attorney punitive Appellant and and an damages. 25% asserted, defenses, among applicability swered and its other of (c) appellee’s recovery former OCGA 33-34-5 as a bar to under Mrs. § case, policy. During pre-trial Rambo’s the instant stage of opinion, court an uphold issued the effect of which was to the viabil (c) ity appellant’s of former OCGA 33-34-5 defense such circum § stances as existed the instant case. See International Indem. Co. v. was, decision That however, reversed Supreme Court. “We hold [former § (c)] 1, apply policies intended to existence on March 1975 and not those which came into existence after that date.” Enf inger v. 185, Intl. Indem.
After the motion rehearing was denied our Su preme 25, 1984, Court on July application for a of writ certiorari was filed with the Court of the United States. On November was denied. 1984, On December appellee appellant partial and reached settlement of the promise instant case. consideration of the Mrs. Rambo subsequently premiums, would tender $150 additional appellant agreed $45,000 present payment and did make a pellee no-fault benefits under Mrs. How- Rambo’s ever, agreed it was all remaining concerning appellee’s issues en- fees, penalties, attorney titlement to recover punitive damages and would be reserved for trial. a.jury These issues were tried before on appellee Judgment a verdict in favor of was returned. was entered judgment the verdict and filed a motion for notwithstand- or, alternative, mo- ing Appellant’s in the for a new trial. verdict court entirety. tion was denied in its It is from that order trial appeal. instant brings the error, Among gen- its 28 enumerations of raises evidentiary rulings tangentially that are grounds eral and numerous It enumerations that will be general grounds. related to the is those first. addressed
Appellant’s primary concerns the date that contention determining compliance an insurer’s became “final” Applying the rationale of Cotton States Mut. with OCGA 33-34-6. § McFather, (3) (1983), Ins. Co. days July within paid should have been 30/60 since that is the date our Court denied the motion for rehearing thereby “finally” determined the non-via (c) bility According former OCGA 33-34-5 defense. however, appellant, inapplicable authority upon McFather which to (c) predicate recovery by appellee punitive of OCGA 33-34-6 dam McFather, ages, since unlike the evidence the instant case shows that an for a from our Court’s writ certiorari *3 with, Enfinger Supreme decision was filed the Court of the United This, appellant, States. is according proof sufficient disposition application could not have become “final” until for West, Supreme Dorsey certiorari filed the U. S. Court. See 252 (311 94 fn. 3 Appellee paid was the benefits days within 60 of application November the date that this for federal certiorari Accordingly, was denied. the issue for resolution “finality” is whether the of of determining for pellant’s liability punitive for damages by is controlled the McFather by Dorsey or rationale the rationale. Terrell, International Indem. Co. v. 239) (1986), applied Dorsey this court the rationale and
held that the “failure to tender the no-fault benefits until disposition final of which turned out to be denial of a writ Court, by of certiorari the Supreme United States was reasonable as a evidentiary posture matter of law.” of Terrell differs Terrell, from that Apparently supra of the instant case. unlike at 572- 573, appellee in the instant case undertook to adduce such additional jury’s evidence for the consideration as would “warrant... an infer- [appellant’s] ence that petition decision to for certiorari was a dila- tory end, tactic. . . .” appellee produced, To this over ob- two jections, attorneys witnesses who were shown to be and members Supreme the bar of the Court of the United States and who were duly qualified opinions that, as legal experts. These witnesses offered ques- that no “federal demonstrated insofar as the record rehearing filed, was until the issue was ever raised tion” the requisite jurisdic- Supreme lacked the Court of the United States by Court. decision rendered tion to review the presented Terrell, jurisdictional was not issue which As to specifically nothing appellant trary. the con- at trial which offered appeal compelling Moreover, contention on makes no testimony experts’ statement of the constituted an erroneous applicable statutory grant jurisdiction regards the federal law as for securing Court decision the review of a state court Susquehanna generally § 1257; USCA States. See of the United 438, LE U. S. 57 SC Co. v. Branch Boom Boom West expert’s opposition By way testi- of substantive only appeal, gen- mony, appellant trial, and relies on on relied at legal principle of certiorari should not be construed eral as the that a denial
expression opinion court the merits on of an principle beyond dispute. validity legal decision. The of this pur- necessarily foreclosing the it as We nonetheless do not construe sufficiency inquiry into the suit of an otherwise relevant statutory jurisdiction. litigant’s appellate court’s invocation of an opposition, appellant Having offered no substantive evidence testimony appellee’s experts on enumerates the admission of the several by evidentiary grounds. that, relevance, it is clear With predicating the fact virtue of its faith” refusal to pending application certiorari, itself rendered ex- of the pert testimony viability underlying legal of that generally potentially Stewart v. evidence. See relevant and admissible (4a) State, authority We are aware of no proposition filing application for the that the mere of an grant the irrebuttable evidence of an insurer’s of certiorari Court of the United States is
“good faith” and cannot be possible dilatory existing shown to be a tactic under the circum- opinion gave the ultimate stances. witnesses themselves as to issue, which was whether the for certiorari was merely gave sought opinion good [their] witnesses] or in bad faith. “The [regarding [s] . . . law as to matters involved with the federal *4 Supreme jurisdiction States] [their] of the Court of the United testimony province jury. [Cit.]” Smith v. did not invade the of the (5) (203 717) (1973). Varner, 484, Moreover, appellee successfully grant a di- insofar as rected verdict on the relevant moved the trial court to
legal jurisdiction, the evidence issue of clearly judge might re- “While . . . the trial have was sorted to the admissible.
[federal] and the decisions of the statutes say to re- [the States], we cannot that it was error Court of United testimony attorneys practiced [that court], in who ceive the of skilled [ap- as to what was proper in at a conclusion arriving to aid him in , practice of especially . . . and as to plicable] law [that court] testimony [ultimately] appeals and their dismissal. regard judge; of the and he was for the information jury, not for the but duty attorneys, but it was his at last of these by opinions bound other himself, opinions these such law aided to decide the Chattanooga &c. R. him.” as were accessible to sources of information Accordingly, Jackson, SE Co. v. testimony concern- expert in of the no error the admission there was or, of evi- law in the absence aspect applicable of federal ing of verdict as contrary, grant in the trial court’s a directed dence to the (c). Stewart v. Compare also 9-11-43 legal to that issue. See OCGA § (4b). State, supra at to be appellant perceives the instant case appear
It would that in sense Enfinger’s “finality” controlled a determination stage appellate in some of the longer that case was however, in the point is at what process. question, The relevant in an in pellate process Enfinger become “final” the sense that did (c) 33-34-5 to vindi longer rely upon surer could no former OCGA § in entitlement “good denying cate its faith” Flewellen to those who were insured under under Jones and evidence of policies subsequent issued to March 1975. Under the case, testimony appellee’s ex including record in the instant perts, say finding that a was demanded that we cannot days July 1984 was in failure or refusal within 30/60 finding a matter of law or that a was not authorized appellant’s delay pending disposition application effect of the merely dilatory for the federal writ of certiorari was not certiorari, there Notwithstanding application tactic. was addi became “final” for tional evidence the instant case that Court’s denial of rehearing, that no viable avenue of further reasonably available. Cf. Cotton States Mut. Ins. Co. v. recourse was Terrell, McFather, Indem. Co. v. supra. Compare International supra. perhaps Our be different were an holding regard might apply insurer other than involved. the decision to Court in for the writ of certiorari from the U. S. by appellant Appellant was one which was made the instant case. is presumed applicable therefore to have known of the federal law relat ing consequently, appellant chargeable to that compliance or non knowledge of the reasonableness of the presumes “The law compliance of its therewith. every Hughes the law. . . v. State Bd. Med. Examin one knows ers, SE support general Appellant makes a further assertion
87
PIP
may provide
optional
grounds. “Although
policy
an insurance
Flewellen,
obligation
the insurer’s
inception’
benefits ‘from its
under
—
insured/policyholder
until the
those benefits does not arise
—
higher
cover-
contrasted to an incidental ‘insured’
demands
Co. v.
Occidental Fire & Cas.
premium
his
therefor.”
age and tenders
574)
(328
(1985).
Appellant urges
Buyce,
SE2d
App.
in Decem-
appellee
of benefits to
prior
payment
that at no time
to its
by any demand for
supported
ber of
claim ever
1984 was
by Mrs. Rambo.
coverage
premiums
and tender of
that,
showed
March of
The uncontroverted evidence
coverage
and benefits
demand for maximum
repre-
who
in the form of a letter from counsel
was sent to
Rambo,
insured/policyholder,
appellee,
sented both Mrs.
Co.,
Ins.
Compare Bailey v. Ga. Mut.
injured incidental
insured.
SE2d
This letter made an uncondi-
Ga.
im-
premiums
coverage
offer to tender the
for such
tional
additional
named in-
mediately upon
“by
advisement of the amount owed
sured.”
this demand letter did
Although appellant’s
response to
cover-
contain information
the amount
the additional
regarding
cost,”
appellee’s claim
age
unequivocally
“would have
it
stated that
coverage
was
on the
under Mrs.
being
existing
denied
basis of
evidence,
Rambo’s
Under this uncontroverted
denial
unconditional
coverage was tantamount
to the denial of the offer of
attempt
upon
tender and it was not incumbent
Mrs. Rambo to
premiums.
make an actual tender of the stated amount of additional
828)
Owenby,
See
Nickelson v.
Accordingly, there was uncontroverted administratively complete case and otherwise valid demand that an policy under Mrs. Rambo’s and tender for the extension demand, appellant had been in March of which submitted to only coverage. gen- tender and claim had been denied for lack of See erally Jennings, Hanover Ins. Co. v. 863) (1984). Appellee upon “renewed” his claim based Mrs.
Rambo’s by filing against demand and tender suit Under evidence, appellant’s payment when final legal against defense sought appellee’s the benefits in suit was removed our in Court’s decision no formal renewal of that demand or in legally necessary apprise appellant “good claim was order to of its obligation pay appellee’s in being sought those benefits pending violating action or risk the mandate of OCGA 33-34-6. Compare Doran Travelers Indem. supra. Accordingly, only v. the jury issue pay was whether had failed to those benefits sought in applicable period suit within the time and, had, if it in “good whether that failure was faith.” That issue has been discussed in Division 1. There is no merit this further asser- tion general grounds. under the
3. Error is grant portion enumerated as to the trial court’s of a appellee’s motion in limine. ruling pre- The contention is that the cluded from adducing concerning evidence counsel’s em- ployment by Rambo, Mrs. which evidence would have been relevant authority to counsel’s representative to act as the of the named insured under the
Appellant’s supported by contention is not the The record. mo- tion in limine was addressed to such evidence as related to the con- employment tract of appellee, between counsel and not the contract of employment between nothing counsel and Mrs. Rambo. There is whatsoever to indicate that the trial court’s grant pretrial mo- tion in limine precluding subsequent inquiry had the effect of into authority Rambo, counsel’s act Mrs. were to have as- authority during of that as a relevant issue the serted the existence court’s Appellant makes no contention that course of trial. employment inquiry the terms of the contract of preclusion of into this enu- Accordingly, was erroneous. between counsel and meration has no merit. introduc- excluding
4. trial court erred urged It is “reasonable- which was relevant to the ostensible tion of evidence (c) prior at times former OCGA 33-34-5 defense appellant’s ness” of July an insurer’s reliance that defense at The reasonableness of Supreme Court’s denial of the motion for re- prior all times to our gen- was a conceded issue the instant case. See hearing McFather, supra States Mut. Ins. Co. at 743 erally Cotton appel- only faith” issue for resolution was the reasonableness “good non-viability of that lant’s failure or refusal to after Court. Ac- “finally” defense had been determined which related to only relevant evidence would be that cordingly, post-July by appellant regard 1984 actions taken opinion, in Division 1 of this pellee’s claim. As has been discussed do, authorized to jury heard evidence as it was to the U. S. determined that represent did not such Court for writ of certiorari evidence justify pay. faith” as would its refusal to Since excluded issue subject relevancy which is the of this enumeration had no circumstances, appellant’s “good faith” under the there was no er- *7 ror.
5. In colloquy concerning with the trial court the introduction evidence, that his appellant certain counsel for made the statement response client had case. The trial court’s to “won” the Su- pellant’s [Enfinger] counsel that his client “didn’t win preme Georgia particular Court of at that time to mail-outs. point appeal, appellant urges in time.” On [Appellant] lost it at that had been that the trial court’s statement case “lost” expression opinion in our constituted an as to what Court proved or not and was of OCGA 9-10-7. had had been violative § The trial court’s statement was not violative of OCGA 9-10-7. § appellant That had “lost” Court was a “ evidence, by undisputed it proved statement of fact. ‘When a fact is the fact is judge is never error for a trial to assume or intimate that proved. judge ‘It is not harmful error for the trial to [Cits.]’ [Cits.] by the evi- express opinion in accordance with what is demanded v. controversy.’ is no Rauch dence and about which there [Cit.]” (189 111) (1972). Shanahan, App. 125 Ga. 785 SE2d right to appellant 6. The refusal of the trial court to afford is enumerated opening concluding argument jury make the and 90 upon relies the fact that regard,
as error. this the in- “good upon as proof the burden of to places 34-6 33- upon question and conclude turns right open “The to surer. is, upon whom the burden evidence, question involves the that (1) (293 Whitworth, App. 794 v. 162 Ga. rests.” Hodsdon proof 70) (1982). required insurer is legally outset that whether the We note at the faith” under OCGA 33- proof to assume the burden of as to the insured has met ultimately dependent upon whether 34-6 is itself timely submission of a claim proof his initial burden of as to the sought. gener- the benefits See which demonstrates his entitlement to (333 628) West, App. Ins. Co. v. ally Midland (309 676) (1985); Torok, App. Allstate Ins. Co. v. (1983). case, appellee’s the circumstances of the instant claim Under payable premi- was not absent a demand for and a tender of ums Mrs. Rambo as our discussion Division evidenced 2, appellant on issue on the that re litigating ground insisted that v. necessary. newal demand and tender were See Doran Travelers In dent. “So of the burden remains supra. long portion plaintiff, Hodsdon v. it has shifted to the defendant. [Cits.]” Whitworth, circumstances, supra Under these it at 794 would pear right opening was not entitled to claim the (50 DuBignon Wright, v. closing argument. generally See Ga. 263 65) (1904). SE
However,
assuming
appellant may
even
otherwise have been
right
entitled to claim the
opening
closing argument,
the rec
clearly
ord
timely
shows
failed to assert its claim a
open
fashion. “The rule is
right
and conclude must be
testimony by
party
claimed before
the other
Fisher v.
is submitted.”
Whitehurst,
SE
South
See also
Gresham,
ern R. Co. v.
(1901);
Ga. 183
SE
North
ington Granade,
(2)
447) (1903);
Hill,
7. The mistrial, trial court denied motion for a which motion was based a statement made appellee’s counsel closing argument. appellee’s counsel withdrew the remark and the trial court “put your instructed the it out of ...” Although minds. the denial of the motion for mistrial is enu error, merated as all the facts of this opin case we are of the “[u]nder ion that it cannot properly be held that abused judge his *8 mistrial, discretion a overruling and that prejudice, if any, by argument created upon which the motion was based was completely erased the actions Mc judge.” taken Cluskey v. American Oil enumeration, guise arguing appellant makes the appeal that,
further assertion in its the trial court incident, brief on after the above erroneously appellee’s allowed counsel to make a some- prejudicial jury argument. only what similar remark in his regard original the trial court’s denial of a mistrial with remark ruling is enumerated as error. The trial court’s with reference to the subsequent subject sepa- remark of counsel is not the of a rate enumeration of error and will not be considered. giving appellee’s requests
8. The trial court’s of certain of charge subject appellant’s is the of several of enumerations of error. charges holding All the contested to be erroneous have been and the reasons for advanced them
carefully part, considered. For the most previous prior however, our resolution of the issues addressed opinion any divisions of this enumerations renders extensive discussion of these unnecessary. charges presents None of the contested a ground reversing judgment. meritorious give appellant’s requests 9. The trial court’s refusal to certain of charge subject Again, is also the of several enumerations of error. carefully all such enumerations have been considered but none presents a valid basis for reversal. Judgment McMurray, Pope, J., J., P. concur. affirmed. Rehearing.
On Motion rehearing, appellant urges opinion In its motion for that our has allowing lay jury the erroneous effect of to determine whether an appeal punitive damages Ap- is frivolous and to assess if it so finds. pellant’s misunderstanding contention in this evinces a of our holding. The issue in this case is not whether misused its right losing litigant appellate jurisdiction as a and invoked an court’s purpose pursuing appeal grounds. for the sole on frivolous responsibilities losing issue is whether satisfied its as a liti- gant by basing its failure or refusal to no-fault benefits on its discretionary appellate efforts to secure review the Su- preme States, Court of the United acted faith” toward its meaning insured within of OCGA 33-34-6. The evidence in the finding notwithstanding that, instant case authorized a the relative any question might merits of federal that was or have been raised appellant’s litigant certiorari, for the writ of its status as a Enfmger already appellant’s at an end. The effect of failure to question timely raise preme federal in a fashion was to render our Su- jurisdictionally Court’s decision nonviable vehi- predicate any cle by which to effort to secure an review ques- Court of the United States. Had there been no jurisdictional appellant’s appli- tion but that a viable basis existed for jury question certiorari, cation for the writ of toas lack *9 disposition have good would of that final faith appellant suggests, of an mere existence hold, To existed. application Court certiorari from for a writ of underlying notwithstanding controlling factor, an States is the United support any jurisdictional therefor, the unwar- is to sanction lack of by any applications employment and all such ranted indiscriminate parties appellate court’s otherwise a state dissatisfied with who are process does not The and all issues. “final” resolution of every The case. of the United States Court extend evidence cumstances, finding that, cir- under the case authorized a in the instant pendency writ of for the which to refuse or fail to faith” basis was not a certiorari pay appellee him. were due benefits that the no-fault against appellant, punitive damages accordingly authorized to assess pursuant pursued appeal, having to OCGA a frivolous but not for (c). 33-34-6 rehearing denied. Motion for 6, 1986 Decided November
Rehearing denied December Wetzel, Michael L. appellee. Laszlo, Butler, Jr., E. Sandra S.
James HALL v. THE STATE. 72763. Judge.
Beasley, (OCGA (a)), Convicted of molestation defendant child appeals. permitting
1. Defendant contends the court erred evidence comply a similar transaction where state failed to with Uniform Superior particulars. Court Rules 31.1 and 31.3 three a) present The notice of intention to evidence of a similar trans- county transaction, date, action did not include the and name of vic- tim. b) timely; The notice was not it was filed on November and the case was tried on November c) permit evidentiary hearing The trial court did not as de- requested. fendant objections
We consider these seriatim. a) statutory rape Defendant was indicted under three counts: victim, and child molestation with to one minor count