Cassandra Meadows Owens appeals from the grant of summary judgment in favor of Generali — U. S. Branch (Generali), the law firm of Sullivan, Hall, Booth & Smith (Sullivan Hall), and attorney Roger S. Sumrall in her abusive litigation lawsuit. Owens filed this suit after successfully defending the underlying suit brought agаinst her by Generali. See
Generali
—
U. S. Branch v. Owens,
Briefly, Owens, who was uninsured, was involved in an automobile collision with Generali’s insured, Pedro. Generali paid uninsured motorist and medical payment benefits to Pedro in connection with
*291
this collision and, under a right of subrogation, then instituted suit against Owens in its own name for recovery of these amounts. Relying upon
Liberty Mut. Ins. Co. v. Clark,
As a preliminary matter, we note that in addition to her enumerations of error and brief, Owens filed an amended enumerations of error and brief. The amended enumerations of еrror and brief are untimely, as they were filed more than 20 days after the appeal was docketed.
1
See Court of Appeals Rule 26 (a). Therefore, the amended enumerations of error “will not be considered inasmuch as enumеrations of error may not be amended after the original filing time has expired.”
McGraw v. State,
1. First, Owens contends the abusive litigation notice she provided to the appellees met the requirements of OCGA § 51-7-84 (a). That statute provides: “As a condition precedent to any claim for аbusive litigation, the person injured by such act shall give written notice by registered or certified mail or some other means evidencing receipt by the addressee to any person against whom such injured person intends to assert a clаim for abusive litigation and shall thereby give the person against whom an abusive litigation claim is contemplated an opportunity to voluntarily withdraw, abandon, discontinue, or dismiss the civil proceeding, claim, defense, motion, appеal, civil process, or other position.” Sumrall does not contest the notice provided by Owens, but Generali and Sullivan Hall maintain that as to them, notice was inadequate.
All parties cite
Talbert v. Allstate Ins. Co.,
In evaluating whether Talbert’s abusive litigation notice to Allstate was sufficient under OCGA § 51-7-84, we noted that for purposes of that section, OCGA § 51-7-80 (6) defines “person” to include “a corporation or any entity with capacity to sue or be sued.” Id. at 313. Therefore, Allstate was entitled to notice of Talbert’s intention to sue it for abusive litigation. Because “Talbert failed to specify Allstate as the one against whom Talbert would seek relief,” we held that “the letters did nоt meet the prerequisite of notice under the Code section.” Id. at 314.
In this case, Owens’ abusive litigation letter states: “[pjlease consider this letter notice to your client Generali — U. S. Branch, your law firm, and yourself of my clients’ request pursuаnt to OCGA §§ 9-15-14, 51-7-80, et seq. for the withdrawal of your client’s claims and dismiss this action within the next thirty (30) days.” Both Sumrall and Sullivan Hall’s names appear at the top of the letter. Owens sets forth the position which she claims is abusive, and the letter was sent by certified mail, return receipt requested. None of the appellees contend that Sumrall did not receive this letter.
We find the notice afforded Generali sufficiently complies with the statute. In accordance with
Talbert,
the abusive litigation letter plainly names Generali. And, because Generali was a represented party, Owens was precluded from notifying anyone
except
Sumrall of her abusive litigation claim against Generali. See Ga. State Bar Rule 4-102, Standard 47. Generali’s argument that Owens should have forwarded to Sumrall, as counsel for Generali, a separate certified letter of notice for Sumrall to then forward on to Generali is not required by OCGA § 51-7-84. “The abusive litigation tort set forth in OCGA § 51-7-80 et seq. is in derogation of the common law, and must bе strictly limited to the meaning of the language used, and not extended beyond the plain and explicit statutory terms.”
Kirsch v. Meredith,
Similarly, Owens’ letter was sufficient notice to Sullivan Hall оf the possibility of an abusive litigation claim. Contrary to Sullivan Hall’s argument, OCGA § 51-7-84 does not require that notice of an abusive litigation claim be specifically provided to a partner, officer, director, stockholder, or shareholder of the firm or corporation allegedly engaging in abusive litigation. “The stated purpose [of OCGA § 51-7-84] is to give the prospective defendant to the abusive litigation claim an opportunity to voluntarily withdraw his defense or position.” Talbert, supra at 313. Because Owens’ abusive litigation *293 lettеr adequately notified Sumrall, an agent and representative of Sullivan Hall, of her prospective claim, and because Owens’ letter specifically named both Sumrall and Sullivan Hall, we find that Sullivan Hall was given adequate notice of Owens’ claim and an opportunity to withdraw its position.
2. Owens next contends that summary judgment was improper because when Generali filed its suit against her for subrogation, “there was ample binding statutory and case law precedent” prohibiting insurеr direct tort actions, including insurer direct tort actions for medical payments. Generali had sought payment from Owens for both uninsured motorist benefits and medical payments in the underlying action. Presumably, Owens advances her “ample authority” argument to show that appellees pursued the underlying suit against her without substantial justification, in violation of OCGA § 51-7-81 (2). We note that although questions of fact are usually for the jury’s determination, whether or not Generali’s suit had a basis in law at the time it was filed is а question of law. It was therefore appropriate for the trial judge to pass on this issue of law in determining whether Generali’s suit was without legal foundation when it was filed.
Owens correctly argues that OCGA § 44-12-24 prohibits the assignment of a right of action fоr personal torts. And, as we pointed out in Generali, an insurer could not bring suit directly against an uninsured motorist based on an assignment of the insured’s right of action without violating OCGA § 44-12-24. Generali, supra at 585. However, even in light of OCGA § 44-12-24, after reviewing the cases cited by Owens in support of her argument, we disagree that so much authority existed on this point that when Generali filed its suit, appellees instituted abusive litigation.
In addition to
Clark,
supra, Owens cites
Govt. Employees Ins. Co. v. Hardman,
The case cited by Owens most factually similar to the instant case is Clark, supra, which is the same case this Court reliеd upon in finding for Owens in the initial action. See Generali, supra. With *294 respect to Owens’ argument that Clark was ample authority to render appellees’ pursuit of the underlying action “without substantial justification,” we disagree. Although we held in Generali, supra, that Clark was not distinguishable from the facts of Generali, appellees correctly point out that Clark was not binding precedent, but physical precedent only. This is so bеcause one judge on the three-judge panel, Presiding Judge Deen, concurred in the judgment only. Clark, supra at 32. “A judgment which is fully concurred in by all Judges of the division is a binding precedent; if there is a . . . concurrence in the judgment only, the opinion is a physical precedent only.” Court of Appeals Rule 33 (a). Additionally, the parties have not cited and we have not located any other binding authority decided subsequent to Clark and prior to the filing of Generali’s suit in support of Owens’ argument.
“Without substantial justification” is defined generally in OCGA § 51-7-80 (7) as asserting a position which is frivolous, groundless in fact or law, or vexatious. Although Owens argues that sufficient authority existed at the time Generali filed its suit against her to make that suit abusive under OCGA § 51-7-80 et seq., our review of the cases cited by Owens indicates that although ultimately without merit, Generali’s position, at the time it filed suit, was not frivolous, groundless in fact or law, or vexatious. See OCGA § 51-7-80 (7). Therefore, Generali’s challenge to Clark in the underlying action, both with respeсt to insurer direct tort actions and insurer direct tort actions for medical payments, was not “without substantial justification” so as to sustain Owens’ claim for abusive litigation.
3. Owens argues that the trial court erred in granting summary judgment to appellees because there were material facts in evidence to the effect that appellees acted with malice and without substantial justification. Because OCGA § 51-7-81 requires both malice and lack of substantial justification on behalf of thе abusive litigation defendant in order to find liability, our holding in Division 2 that appellees did not act without substantial justification makes this question moot.
However, in connection with Owens’ arguments as to malice and substantial justification, we note that she has not cited and we have not located in the record any instance of malice on behalf of appellees. “Malice” is defined by OCGA § 51-7-80 (5) as “acting with ill will or for a wrongful purpose and may be inferred in an action if the party initiatеd, continued, or procured civil proceedings or process in a harassing manner or used process for a purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based.” As Owens failed to show that appellees acted both with malice and without substantial justification in pursuing the underlying suit, after viewing all the evidence and drawing all
*295
reasonable inferences from that evidence in a light most favorable to Owens, we cannot say the trial judge erred in granting summary judgment for appellees on Owens’ abusive litigation claim. See
Lau’s Corp. v. Haskins,
4. Having upheld the grant of summary judgment for appellees, we address together Owens’ remaining two enumeratiоns of error, which assert that the judge, in making a ruling on the summary judgment motion, should not have relied upon old rulings in Generali’s favor from the underlying case which were later reversed by that trial judge, and further should not have relied upon the fact that in Generali, supra, when the case came before this Court on appeal, we declined to impose a penalty on Generali for frivolous appeal. See Court of Appeals Rule 15 (b).
Contrary to Owens’ assertion, and pretermitting the question of whether the trial judge was authorized to consider either of these facts, nothing in the record or the trial judge’s order granting summary judgment indicates that he did consider these facts. “The burden is on the party asserting error to show it affirmatively by the record.”
Stolle v. State Farm &c. Ins. Co.,
Judgment affirmed.
Notes
The appeal was docketed on June 27, 1996. The first brief and enumerations of error were filed within 20 days, on July 17, 1996. The amended brief and amended enumerations of error were filed on July 30, 1996, outside the 20-day time limit.