The following chronology is relevant to this appeal from the judgment awarding to plaintiff Charles Adrian Dunn $1.5 million compensatory damages and a total of $3 million punitive damages, based on a jury’s special verdict finding against defendant Overground Atlanta, Inc. (“Overground”), and its insurer, defendant Jefferson Insurance Company of New York (“Jefferson”), for conduct seeking to defeat plaintiff from any likely satisfaction of a prior million dollar judgment against Overground: On November 2, 1982, plaintiff sustained permanent brain damage as a result of being brutally beaten by the manager of the Jolly Fox Lounge, which tavern was owned and operated by Overground. Overground was insured under a liability policy issued by Jefferson, with policy limits of $50,000. This policy promised Overground that Jefferson had “the right and duty to defend any suit against the insured seeking damages on account of. . . bodily injury[, . . .] even if any of the allegations of the suit are groundless, false or fraudulent. . . .”
Plaintiff brought an action against the Jolly Fox (Overground) for his personal injuries and offered to settle before trial for the $50,000 limits of coverage under Jefferson’s policy. The complaint was forwarded to Jefferson with instructions to “[p]lease handle as quickly as possible.” Overground “direct[ed] the insurance company [Jefferson] to settle for the policy limits,” but Jefferson refused to settle and further refused to defend its insured, relying on an “Assault and/or Battery Exclusion Endorsement,” to deny coverage. *733 Overground ultimately retained its own counsel. For aught that appears of record, Jefferson issued no pre-trial reservation of rights; in any event Jefferson never sought a judicial declaration of its rights and duties under the liability policy. As late as February 24, 1987, plaintiff’s counsel offered to settle for the $50,000 policy limits while contending that Jefferson could be liable for any excess judgment based upon its refusal to settle.
The personal injury case proceeded to trial and resulted in a jury verdict and a March 18, 1987 judgment awarding plaintiff $250,000 compensatory damages and $750,000 punitive damages on the bases of “negligence, false imprisonment and malicious prosecution. . . .” Only after judgment against its insured did Jefferson retain separate counsel to pursue an appeal in Overground’s name, after being informed that “Overground Atlanta, Inc. is in fact a defunct corporation [which] does not have the funds or intention of appealing from the judgment.” As early as April 10, 1987, counsel for Jefferson was concerned that plaintiff and Overground would try to “ ‘set up’ ” and “ ‘sand bag’ ” the insurer over the million dollar judgment. In late January 1988, as the notice of appeal was being prepared, the insurer contemplated “negotiating some settlement of any exposure under the policy direct[ly with counsel for Overground]. By June 1988, the insurer expressly contemplated that Overground would “execute a policy release ... by virtue of [Jefferson] paying some nominal amount [. . . such as unpaid] attorney’s fees and/or expenses in connection with this litigation.”
The judgment against Overground was affirmed by a majority of this Court on March 31, 1989.
Overground Atlanta v. Dunn,
On July 5, 1989, Overground entered into a “RELEASE AND SETTLEMENT AGREEMENT” with Jefferson. In exchange for $5,500, representing unpaid attorney fees owed to Overground’s retained counsel, Overground released Jefferson from any and all claims of every character “under Policy No. L137830, . . . arising from or in any way relating to an incident which occurred on or about November 2, 1982 at THE JOLLY FOX LOUNGE and any events subsequent thereto involving [plaintiff] CHARLES ADRIAN DUNN, the [tort] case [against Overground . . .], or the judgment entered against OVERGROUND ATLANTA, INC.” This represented a “full and final compromise of doubtful and disputed claims,” including any potential claim against Jefferson for any alleged negligent or bad faith refusal to defend the underlying tort action to the detriment of *734 its insured.
On July 2, 1992, plaintiff Dunn commenced the instant action against Jefferson, Overground, and Overground’s counsel. This complaint alleged that the release and settlement agreement entered into when Overground as a judgment debtor was insolvent amounted to a fraudulent conveyance of Overground’s sole remaining asset, to the detriment of plaintiff as a judgment creditor. The complaint specifically alleged that Jefferson “obtained The Release from Overground, ... its officers, directors and attorney, with the intention to delay or defraud [plaintiff] Mr. Dunn of full satisfaction of his judgment for $1,000,000 plus interest and costs.” It was further alleged that the release was obtained in “bad faith” and in violation of OCGA § 18-2-22. The complaint also alleged a conspiracy, i.e., a “positive or tacit mutual understanding to defraud [plaintiff] Mr. Dunn . . .” out of the proceeds of the policy and the value of Overground’s claim against its insurer.
Overground never answered this second suit and was held in default. Jefferson denied the material allegations, admitting only that it knew of plaintiff’s claim against Overground as of February 9, 1983; that it did not accept plaintiff’s pre-trial offers to settle for the policy limits of $50,000; and that its attorneys drafted the release and settlement agreement. Overground’s own trial counsel, an original party defendant, was released without prejudice before trial.
In support of his claims of conspiracy and fraudulent conveyance, plaintiff introduced post-judgment documents and correspondence written by Jefferson’s attorneys and claims managers, indicating that Jefferson’s agents knew that Overground’s potential claim against Jefferson for bad faith refusal to defend or settle within the policy limits constituted Overground’s only real asset. Consequently, Jefferson undertook to obtain the release and assignment of any such claim from its insured lest Overground assign the bad faith claim to plaintiff, the judgment creditor. Jefferson was advised that counsel was attempting to obtain the release upon payment of a “nominal figure,” and that counsel for Overground was being coached to opine that Jefferson’s policy afforded no coverage or else that any exposure was capped by the $50,000 policy limits. Plaintiff’s Exhibit 82, the handwritten notes of William Everding, reveal Jefferson’s institutional perspective: “A policy release does not protect us from the plaintiff. . . . Our [Jefferson’s] taking a policy release in exchange for $5,500 legal bills’ would not look too good and might buy us too much trouble by reducing our present ‘White Hat’ status to one of a combination member who was attempting to bypass the legal process by disapating [sic] the Insured’s asset (Our Policy) after the judgment.” (Emphasis in original.) Counsel was then instructed to inquire whether the “Insured [would] agree not to sue us in bad faith *735 or not assign his rights to the plaintiff if we pay the attorney’s fees?”
Answering special interrogatories, the jury found that plaintiff was entitled to $1.5 million in compensatory damages and further found, by clear and convincing evidence, that both Overground and Jefferson should be liable for punitive damages. The jury subsequently found that Jefferson and Overground each “acted . . . with specific intent to cause harm,” assessing $2 million punitive damages against Jefferson and $1 million punitive damages against Overground. Jefferson’s motions for judgment notwithstanding the verdict or for a new trial were overruled, and this appeal followed. Held:
1. Once a case has been submitted to the jury and a judgment rendered on its verdict, the denial of a summary judgment motion is a moot issue. See
Metromedia Steakhouses Co., L.P. v. Ray,
2. In its September 2, 1994 order denying Jefferson’s motion for summary judgment, the trial court determined that there was coverage under the policy issued by Jefferson “for the separate and independent negligence of Overground Atlanta as found by the jury in the underlying litigation and as affirmed by the Court of Appeals in
Overground Atlanta v. Dunn,
In Continental Cas. Co. v. HSI Financial Svcs., supra, the Supreme Court of Georgia answered a certified question from the United States Court of Appeals for the Eleventh Circuit in a declaratory judgment action brought in the United States District Court. The Supreme Court of Georgia interpreted the following exclusion in a professional liability insurance policy: “ ‘EXCLUSIONS . . . (Continental) will not pay, under (the) coverage part, for: Any claim arising out of any dishonest, fraudulent, criminal, or malicious act by (an insured) or any of (an insured’s) partners, officers, stockholders, or *736 employees.’ ” Id. at 261. The Supreme Court of Georgia found “that within the plain meaning of the insurance policy, the claims against [two of the partners] for negligence and malpractice with respect to their alleged failure to supervise and mitigate [the third partner’s] criminal acts arose out of the dishonest, fraudulent, criminal and malicious conduct engaged in by [the third partner], bringing those claims within the scope of the policy’s exclusionary clause.” Id. at 263. Jefferson insists that this holding controls the case sub judice in its favor. But the exclusion in the Jefferson policy reads as follows: “Notwithstanding anything contained herein to the contrary, it is understood and agreed in consideration of the premium charged, bodily injuries or death alleged to have been caused by ASSAULT AND/OR BATTERY shall not be deemed an accident or occurrence under this Policy and no coverage shall apply hereunder.” (Emphasis supplied.)
“Reported cases provide little assistance in interpretation where the language of the documents involved is not the same.”
Dunn v. Travelers Indem. Co.,
“In construing an insurance policy, the test is not what the insurer intended its words to mean, but what a reasonable person in the position of the insured would understand them to mean. The policy should be read as a layman would read it and not as it might be analyzed by an insurance expert or an attorney. Where a provision in a policy is susceptible to two or more constructions, the courts will adopt that construction which is most favorable to the insured.” (Citations and punctuation omitted.)
Atlantic Wood Indus. v. Lumbermen’s Underwriting Alliance,
3. It follows that the trial court committed no error in charging the jury that coverage under the policy was not a contested issue, due to the court’s pre-trial ruling, nor in failing to give Jefferson’s Request to Charge No. 42, to the effect that the negligence of Overground would not negate the effect of the assault and/or battery exclusion relied upon in this case. Jefferson’s third and fourth enumerations are without merit.
4. In its sixteenth enumeration, Jefferson contends the trial court erred in denying its motion in limine to exclude purportedly privileged documents that had been ordered produced for discovery after an in camera inspection by the trial court. See
Southern Guaranty Ins. Co. &c. v. Ash,
“There are certain admissions and communications excluded [from evidence] on grounds of public policy. Among these are: . . . Communications between attorney and client.” OCGA § 24-9-21 (2). “Communications to any attorney or to his employee to be transmitted to the attorney pending his employment or in anticipation thereof shall never be heard by the court. The attorney shall not disclose the advice or counsel he may give to his clients. . . .” OCGA § 24-9-24. Moreover, “No party or witness shall be required to make discovery of the advice of his professional advisors or his consultation with them.” OCGA § 24-9-27 (c). “As to violations of law or commission of fraud, however, the protection extends only to communications after the act or transaction is finished. It does not cover communications respecting proposed infractions of the law in the commission of a crime or the perpetration of a fraud. [Cits.] ‘The privileged communication may be a shield of defense as to crimes already committed, but it can not be used as a sword or weapon of offense to enable persons to carry out contemplated crimes against society,’ frauds, or perjuries. [Cit.]”
Atlanta Coca-Cola &c. Co. v. Goss,
“ ‘[A] prima facie showing that the (communication) was (made) in furtherance of illegal or fraudulent activity is sufficient to secure disclosure. (Cits.) The determination that a prima facie showing has been made lies within the sound discretion of the [trial] court. That determination may not be disturbed on appeal absent an abuse of discretion. (Cits.)’ [Cit.] [In the case sub judice], we have made ‘our own independent . . . review of the disputed documents and (find . . .) no abuse of discretion in the (superior) court’s determination.’ Accordingly, the [denial of Jefferson’s motion in limine] must be affirmed.”
In re Hall County Grand Jury Proceedings,
5. Jefferson’s fifth and sixth enumerations complain of the overruling of its motions for directed verdict and j.n.o.v. as to plaintiff’s fraudulent conveyance claim under OCGA § 18-2-22. The insurer argues that, even if some coverage existed under its policy, plaintiff “Dunn failed to present evidence on each of the elements necessary to prove a fraudulent conveyance.” Our review of these enumerations is limited to those specific grounds urged before the trial court in Jefferson’s motion for directed verdict.
Grabowski v. Radiology Assoc., P.A.,
OCGA § 18-2-22 (2) provides that the following acts by debtors shall be fraudulent in the law against creditors and others and as to them shall be null and void: “Every conveyance of real or personal
*739
estate, by writing or otherwise, and every bond, suit, judgment and execution, or contract of any description had or made with the intention to delay or defraud creditors, where such intention is known to the taking party; [but] a bona fide transaction on a valuable consideration, where the taking party is without notice or ground for reasonable suspicion of said intent of the debtor, shall be valid.” But in order for this Code section to apply, “so that a conveyánce by an insolvent debtor can be attacked by his creditor, it must be made to appear that the insolvent debtor actually parted with some valuable asset which belonged to him, and which, if title had been retained, might have been subjected to his debts.”
S. T. & W. A. Dewees Co. v. Paul B. Carter & Co.,
(a) “Choses in action are not liable to be seized and sold under execution, unless specially made so by statute.” OCGA § 9-13-57. Compare OCGA § 9-12-80. Nevertheless, such personalty is subject to attachment by a judgment creditor “ ‘by process of garnishment or by some collateral proceeding. . . .’ ”
Carmichael Tile Co. v. Yaarab Temple Bldg. Co.,
(b) “The question as to whether the [release in the case sub judice] was executed by [Overground] with intention to delay or defraud [plaintiff] in the collection of [his $1 million tort judgment] and such intention was known to the [releasee, Jefferson], or whether the transaction was a bona fide one upon a valuable consideration and wdthout notice or ground for reasonable suspicion, is ordinarily one for determination by a jury. [Cits.]”
Lewis v. Lewis,
Here, Overground’s intent to delay and defraud plaintiff as alleged in the complaint was admitted by its default, but that default is not binding upon Jefferson, who appeared and contested liability. See
Kubler v. Goerg,
This small sum, under the circumstances, represents 11 percent of the $50,000 policy limits; 0.022 (twenty two/one thousandths) of one percent of the $250,000 compensatory portion of the personal injury judgment; and an infinitesimal 0.0055 (fifty five/ten thousandths) of one percent of the $1 million principal sum of the personal injury award. Consequently, this very great disparity between the judgment debt and the consideration received by the debtor in exchange for releasing its insurer “could enter into the question of fraud.”
First Nat. Bank &c. v. Kelly,
6. In a related enumeration, Jefferson contends the trial court erred in submitting the issue of punitive damages to the jury, arguing that the award of punitive damages is based solely on circumstantial evidence which was “directly contradicted by direct evidence. . . .” “It is [however] clear that [since] there is evidence of bad faith . . . [and] conspiracy on the part of [Jefferson as] the taking party or transferee in receiving assets fraudulently conveyed to [it] by [Overground as the judgment] debtor, an award of general and punitive damages against the transferee may be upheld.”
Lawson v. Athens Auto Supply &c.,
7. The next evidentiary objection is that the trial court erred in allowing plaintiff to argue the merits of any bad faith claim without first requiring a proper foundation.
“The order of presentation of evidence is a matter that rests within the trial court’s discretion which will not be controlled unless abused. [Cits.]” (Punctuation omitted.)
McKinney v. State,
8. Jefferson’s fifteenth enumeration assigns error to the admis *742 sion into evidence of opinion testimony regarding the elements of a bad faith claim against an insurer generally and the specifications of bad faith against Jefferson in particular. Jefferson complains that it objected no fewer than 13 times on the basis that James Edward O’Malley, Jr. should not be allowed to give legal conclusions as to whether Jefferson’s actions constituted bad faith.
O’Malley was qualified as an insurance claims-handling expert without objection “other than [defense counsel’s] earlier objection about the opinions.” After initially overruling an objection, in the nature of “best evidence,” as to O’Malley’s testimony about the duties of an insurance company, the trial court eventually sustained this same objection and ordered plaintiff’s counsel to rephrase the question. The trial court then sustained objections as to inadequate foundation, testimony “beyond the scope of [O’Malley’s] qualifications,” and that it amounted to a “legal conclusion.” The trial court next ruled that O’Malley would be permitted to testify “about the standard of care,” but sustained Jefferson’s objection to O’Malley’s opinion that Jefferson “should have done some investigation and taken up the defense ... of their policyholder,” based on the allegations of the amended complaint. The trial court further sustained Jefferson’s objections to the form of a hypothetical question. After another objection on the basis of legal conclusion, the trial court clarified its rulings by agreeing with Jefferson that “ultimately whether or not there is coverage is a legal question . . . and it’s not for [the witness] to answer, but [he may testify as to] how he would or how a person exercising the customs and practices of the industry would react. . . .”
Thereafter, over the same objection, O’Malley testified that he would have first sent a reservation of rights letter to the insured, informing them of the possibility of some defense to coverage but that the insurer would nevertheless “take up the defense in the matter.” Upon receipt of the offer to settle for the policy limits, O’Malley would have “looked into it and probably started some settlement negotiations.” O’Malley was further permitted to opine that it was “not within the custom and practice of the industry, not to do anything.” The failure to negotiate with the plaintiff’s attorney “would fall without — outside of the customs and practices of the industry. . . .” The trial court struck a reference by O’Malley to unnamed duties imposed by “some state statutes. . . .” Over objection, O’Malley was permitted to testify that “it’s in bad faith for them [the insurer] not to investigate it and to enter into some kind of negotiations with the attorney at that time.” Defense counsel was then granted a continuing objection to “the whole line of questioning.” O’Malley then testified that, in his opinion, Jefferson “acted in bad faith” when it chose not to settle within the policy limits and expose its insured, its policyholder, to this excess verdict.
*743
As can be seen from this lengthy recitation from the record, the trial court’s rulings were substantially the grant of relief whenever the questions posed would lead the witness into invading the province of the jury. As to Jefferson’s continuing objection that an expert may not testify that certain circumstances were, in his opinion, indicative of the insurer’s bad faith, we note that a pivotal question posed by this case was “whether the jury was authorized by the evidence to find that the insurer violated any duty to the insured in failing or refusing to accept the offers of settlement.”
U. S. Fidelity &c. Co. v. Evans,
9. The trial court did not err in charging the jury that an adverse inference may be drawn by a party in a civil case who invokes a testimonial privilege. “[A]lthough a person does have a right to invoke the privilege^] [under OCGA § 24-9-27] in a civil case in order to protect himself, when he does so, an inference against his interest may be drawn by the factfinder.”
Simpson v. Simpson,
10. The fourteenth enumeration contends the trial court erred in allowing plaintiff’s counsel to argue repeatedly during the punitive damages phase, over objection, that Jefferson should be punished for its conduct in all 50 states.
When confronted with allegedly improper argument, counsel is “authorized merely to object
on stated grounds
and thereby implicitly request that the trial court acknowledge the impropriety of the closing argument by sustaining the objection thereto.” (Emphasis supplied.)
Garner v. Victory Express,
“This court has held that a mere objection to an unwarranted and prejudicial argument, without more, is not sufficient to properly invoke a ruling by the [trial] court. See
Lenox Drug Co. v. New England Jewelry Co.,
11. Remaining enumerations of error have been carefully considered. There is no merit in enumeration of error seven to the exception involving the charge as given. Nor has Jefferson demonstrated any error in the failure of the trial court to give the enumerated requests to charge. Under the law of the case, the requested instruction on the effect of the insurer’s assault and/or battery exclusion on negligence claims is not an accurate statement of the law and so the fourth enumeration is without merit. “ A party is not entitled to have all of his requested charges given merely because he requests them.’
Lenny’s Number Two v. Echols,
Judgment affirmed.
Notes
We note that the exclusion relied upon by Jefferson is itself ambiguous. It does not distinguish between the intentional tort of battery, such as is defined at OCGA § 51-1-14 and any of the crimes involving battery as proscribed by OCGA §§. 16-5-23; 16-5-23.1; or 16-5-24. If the bodily injuries sustained by plaintiff were neither expected nor intended from the standpoint of the insured, those injuries constituted an “occurrence” as defined in the policy.