*1 14 preliminary hearing drugs belonged trial,

the Ronnie testified that the that the to him. At

drugs belonged “Ricky to “Sweet Pea” and asleep. drugs, Griffeth” and that he had intended to use the but fell stand, addition, both Chandler and Wilson took the and each testi- drugs belong light specific not to them. In fied that the timony did tes- drugs, possessed that neither Chandler nor Wilson we find no actual conflict of interest adverse to Chandler’s defense engendered joint representation thus, and, trial counsel’s no inef- fective assistance of counsel.9

Judgment Ellington, Smith, J, J., P. concur. affirmed. 2 March Decided 200 April 12,2002.

Reconsideration dismissed Hopkins Joseph appellant. Davidson, Booth, Booth, & H. pro Chandler, Jr., James se.

Timothy Attorney, Madison, Rickman, G. District M. Brian Assis- Attorney, appellee. tant District

A01A2450. ST. PAUL FIRE & MARINE INSURANCE COMPANY

v. CLARK et al. A01A2451. SECURITY LIFE INSURANCE COMPANYv. CLARK

et al. Pope, Presiding Judge. appeared This case has before this Court three times and before Supreme Following appeals Court twice. these earlier the trial court entered a modified final in favor Clarks. We are now asked to determine whether the trial court acted consist- ently appellate rulings. with the earlier brought against Security

Gordon and Clarice Clark suit Life Company Security’s agent, Fipps, Insurance John in connection policy purchased with a health insurance that the Clarks from Secur ity through Fipps. Fipps forged and the Clarks’ falsified insurance application, long out, after found rescinded the policy. Security policy comply Clarks’ also sold a that did not with Georgia regulations. certain insurance laws and The full facts under lying the Clarks’ claims are set forth in I. 129) (2000). Turpin, Davis v. Clark, Ins. Co. v. Life failed to and a was entered default

Fipps respond, trial, against claims, him on all fraud. At after the close of evidence, the court directed a verdict favor Clarks (1) issues, several thereby establishing following points: Fipps falsified the the Clarks’ and submit- application, forged signatures, (2) ted the within the application Fipps acting false Security; *2 transaction; course and of his the scope authority during Fipps (4) time; was the agent Security estopped not Clarks’ at the was precluded rescinding coverage; from the Clarks’ insurance and liable a matter inter- Security wrongful as of law on the claim rescinding ference with the Clarks’ property rights by wrongfully their coverage. insurance

Then, form, on a the returned seven-page, special jury verdict in separate special Security verdicts favor of the Clarks and against — on two additional claims Georgia fraud and violations of the Rack- (The (RICO) eteer Influenced & Corrupt Organizations Act. entire verdict form is attached as an to this appendix opinion.)2 jury awarded compensatory damages, without the distinguishing among (fraud, three interference, RICO), claims in wrongful and the amount $4,073,000, with together attorney expenses, fees and and punitive See damages. Appendix. The trial court entered a the judgment on verdict, special which it attached incorporated by reference, that, noted “The Plaintiffs have elected to have in judgment entered their favor and against Defendants their claims asserted under Act, the Georgia (c), [RICO] OCGA 16-14-6 and therefore the com- § pensatory damages awarded after as jury, trebling required by law, $12,219,000.” are The judgment also reflected the awards for fees and attorney expenses and punitive damages and included pre- judgment interest, settlements, set-offs for related and certain ancil- lary orders related to the verdict. The total award amounted to $14,476,694.18.

Security appealed; did not. Fipps motion, On the Clarks’ the trial court ordered Security post a in supersedeas bond the amount of $16,220,000. St. Paul Fire & Marine Insurance Company issued a amount, bond in that and the bond was approved by court. Security’s wound appeal way its through appellate courts in five resulting separate I, opinions. Security this Court reversed judgment II,3 of the trial In Security court. the Supreme Court in part affirmed in reversed the decision in part Security I. In III,4 Security Court, this attempting apply Supreme Court’s claim, Pursuant to the directed verdict on the interference the court jury “yes” questions special instructed the to answer 2 on the verdict form. 602) (1998). Security Co., Clark v. Ins. 270 Ga. 165 Life Clark, Security Ins. v.Co. Life judgment Security original of the trial II, in affirmed the

decision court. In Security Supreme in TV,5the Court reversed the decision Security opinion Security III, II, and remanded clarified its opinion and “for action consistent with this case to this Court both Security Accordingly, V,6 II.” this with our decision judgment court, the trial III, vacated reversed the Court and proceedings TV, remanded the case “for consistent with II, and IT journey, agree judgment’s appellate All that after that lost their RICO clearly judgment Clarks and the directed verdict holding rights by wrongfully rescinding Security wrongfully property interfered with their their coverage. On

insurance original jury remand, court, the trial based on the verdict orig- judgment entered a modified on that claim for the amount of the Including attorney items, inal verdict. fees and certain other plus $6,000,000 modified now decide whether the fraud claim survived totaled over We must interest.

entry original of the rulings Georgia Appellate and the several Courts and whether the trial court acted in accord with the several rulings. appeals Security appeals

There are two now before us: the modi- *3 judgment ruling appeals itself; fied its and St. Paul the trial court’s that

appellate judgment. also covers the bond fraud claim and

Case No. A01A2451 many subparts, error, In nine enumerations of of which include (1) Security essentially urges the Clarks waived their fraud (2) appellate it; claim or elected to abandon the earlier fore- decisions (3) any possible judgment fraud; close not trial court was (4) judgment fraud; authorized to enter a modified and even the required eliminated, fraud claim has not been a new trial is because prejudiced by presentation the fraud verdict was of the RICO and wrongful interference claims and several material errors made at Security challenges prior appeal. trial. also an award of costs on the precluded obtaining judgment 1. The Clarks are not from on the fraud claim the doctrine of election of remedies. expressly voluntarily gave up claims that the Clarks their fraud they, original claim when as stated the trial court in the final judgment, “elected to have entered their favor and against Security [RICO]. Defendants on their claims asserted under . . .” expressly

finds no relevance to the fact the trial court 5 (535 234) (2000). Clark, Ins. Co. v. 273 44 SE2d Ga. Life 6 (547 691) (2001). Clark, App. Ins. Co. v. SE2d Ga. Life incorporated jury’s verdict, the verdict for into judgment. that same party may any “pursue prior

A number of inconsistent remedies entry judgment,” only required to formulation and to make prior an election if inconsistent verdicts are rendered. (332 293) (1985); App. Scheer, Waller v. 1, 175 Ga. SE2d UIV 512) (1976). Corp. App. Oswald, 697, 139 Ga. 699-700 requirement § See also OCGA 9-2-4. There is no such to make an election after consistent And, verdicts. the claims of fraud and RICO they in this case are consistent since both were based on the Clarks’ choice affirm the insurance contract and seek tort sus Moody, tained reason of the fraud. Bacon v. 117 Ga. 482) (1903). generally SE Touche, See Dearborn, Inc. v. Georgia 188, 190 Further, RICO Act expressly provides “[t]he application remedy of one civil under chapter preclude application any remedy, this shall not other chapter provision criminal, civil or under this other of law.” (and plaintiff may pursue § OCGA 16-14-9. A consistent remedies above) provided against person inconsistent remedies as the same until he or § she obtains satisfaction. OCGA 9-2-4.7 Because the Clarks were unable to obtain claim, satisfaction their RICO precluded by fraud claim is still available in the sense that it is not the doctrine of election of remedies.8

Security’s argument that the Clarks somehow abandoned their during opening closing argument fraud claim statement or is also only attempted without merit. claims that the Clarks prove alleged fraud in req- the context of But, RICO scheme. predicate may uisite sepa- acts a RICO claim also stand alone as (2) (a) (460 rate causes of action. Dee v. Sweet, 110) (1995). Additionally, special clearly verdict form presented grounds liability: wrongful three fraud, RICO, rescission. The court directed a verdict on rescission, and challenged chose both RICO; fraud and has not appeal. the form of the verdict on pos-

2. The earlier decisions this case left intact a *4 sible for common law fraud. (a) opinion Security only pos- This Court’s in I decided one issue

sibly rightly wrongly, related to and, the verdict for fraud held 7 course, plaintiff pursuing Of consistent remedies is not entitled to more than one (3) (10 Moore, satisfaction. Belle Isle v. 190 Ga. 885 Curry Washington Co., See also App. 809, v. Nat. Ins. SE (1937) (“If prosecuted alleged a suit be exist, on an cause of action which in fact did not there remedies.”). be, such, cannot as to an of election to the fraud verdict enumerations of error related

that other were moot. Security I, and the entire decision in

We have reviewed the possibly part fraud is found relevant to the verdict for of that decision (d). Security that could There, this Court determined in Division applica- forgery vicariously Fipps’ the insurance liable for of not be tion. 229 Ga. this Court held that (1) (d). opinion, at 602 In the final Division error, enumerations of (4). verdict, rendered moot. Id. at 604 related to the fraud those (b) ruling, Supreme Security and in Court in II reversed this The ground support Security possible TVmade clear that there was a common law fraud verdict. things, Security Supreme among reversed II, Court, other (d) liability Security grounds I that vicarious of on the

Division under RICO must be established dards. liability pursuant to criminal stan- (2). Security II, 270 at 167-168 The court went on to hold Ga. presented that the Clarks had ity sufficient evidence of vicarious liabil- (2). jury. Id. at 168 As stated to submit the issue to jury “There some evidence from which the could conclude court: Security forgery by investigat- recklessly that ing Life tolerated the not charge forgery by pressing long its claim rescission learning Fipps forged application.” Id. after that Although passage suggest this II and its context that Supreme question liability considered the to be the related Court vicarious (Carley, J., claim, TV,

to the RICO see 273 Ga. at 49 dissenting part), IV the same court made clear that the entirely liability vicarious issue addressed in II “was based forgery, upon agent Fipps’ independent act of which was not an ele alleged IV, 47. The ment of the RICO scheme.” 273 Ga. at explained proxi claims, RICO for which court also absent the only remaining established, mate cause could not “one bad act was be distinguish forgery.” easy Id. at n. 22. The court found it act of forgery/vicarious liability the RICO claims and the claim: “It between overlap proximate follows issue and the vicarious there is no between the RICO cause (2). liability findings These issue.” Id. at (h). binding subsequent proceedings. § in all 9-11-60 are OCGA already explained forgery above, As this one act of had been judgment against Fipps unap- established the default pealed entry finding Fipps a directed falsified the verdict application, forged signatures, the Clarks’ and submitted the false Security. simply application Supreme there Court added that question Security’s were sufficient facts to submit to the vicarious Security’s liability Fipps’ actions, actions. These finding timely respond, for a of fraud. failure to constitute basis Nalley e.g., Herringdine Equip. Leasing, 210, 217 See,

19 571) (1999). “Knowingly passing genuine forged SE2d as (Citation instrument is conclusive of the intent to defraud.” omitted.) (195 punctuation 294) (1973). Taylor State, 128 Ga. liability That the fraud and vicarious issues had been Security properly submitted to the became the law of the case. See County, V, 46; 273 Ga. at Shadix v. Carroll I (c) Supreme reopened possibility The Court’s decision remaining Security enumerations of error not addressed in I regarding fraud were not moot. Security majority remaining

In TV the neither stated that the they enumerations had to be addressed nor that need not be Security Rather, addressed. the court reversed III and remanded the Appeals case to the Court of “for action consistent both with this (3). opinion Security Security and . . . IV, II.” atGa. Supreme Appeals question Court left to the Court of which, any, Security of the unaddressed enumerations of error from I (1) (if portions needed to be Shadix, addressed. See 274 Ga. at 563 Appeals subsequent a decision of the Court of are inconsistent with a Supreme reviewing decision of the decision, Court “it is for the Appeals portions Court of earlier consistent with to determine on remand whether the of its opinion Supreme] [the that were not considered Court are

[the Supreme] ruling”). Security Court’s V did not remaining revisit the decision that the moot, and, enumerations of error were importantly, although it reversed the decision of the trial proceedings court, it remanded the case to that court “for consistent Security Security Security with IV, II, I.” Security possible Because IV made clear that there was a basis any for the verdict for other enumerations of error related to reopened that verdict and should have been addressed Appeals. Court Stevens v. Wakefield, 516) (1982). Carley partial As Justice stated in his dissent, “Because [c]ourt’s previous of this reversal of the of the Court of Appeals, remaining longer enumerations are no moot.” (Carley, dissenting part). IV, 273 Ga. at 51 J., § See also OCGA 5- (d) (where appeal judgments, 6-34 rulings, a direct taken, “all or appeal orders rendered in the case which are raised and may proceedings affect the below shall be reviewed and determined court”). (d) appeal, Security words, other in its earlier was bound to judgments, rulings, raise as error all orders, the suffi- ciency any rulings might of the evidence and related affect the step regard Indeed, fraud verdict. took this with trial against Security court’s decision to direct a verdict on the claim for property, despite interference with the fact that the trial reasoning The same on that claim. court did not enter fact, And, fraud. of a verdict for jury’s entry to the applied the verdict for earlier that related to appeal errors in its enumerated there IV made clear that Court in Supreme fraud. Once the have moved fraud, Security could jury’s for the verdict basis of error related enumerations for reconsideration as moot. previously regarded that verdict that were of the unaddressed importance have realized the Security should of a fraud IV reopened possibility enumerations because *6 in his dissent that Carley partial made clear judgment and Justice Indeed, knew Security pending. enumerations were remaining remand; for a after it moved might that the trial court order retrial remand. The unresolved enumerations upon retrial with that Security retrial. pertinent Accordingly, would have been that those enumerations was Security V’s failure to address believed incorrect, applied it have filed a motion for reconsideration could See, Georgia. e.g., Court of Roulain v. Supreme for certiorari with the (1) (466 837) (1996). Martin, 353, But see Todd v. 266 Ga. SE2d (242 613) (1978). 842, Dekle, Security 240 Ga. SE2d did not take either step.

(e) Security may this raises a about whether Although question enumerations represented by remaining have waived issues related to out of an abundance of caution and an effort to case, bring resolution to this we will address the enumera- tions to the fraud verdict.9 relevant

(i) the trial court directed a verdict Security improperly contends that was not the Clarks’ that Fipps agent argues independent are dual agents agents. “[independent

It is the rule in that insurance Georgia agents generally agent or brokers are considered insured, Holman, European [Cit.]” not the insurer. Bakers (2) (338 702) (1985). 172,173-174 is, 177 Ga. SE2d This App. rule, however, and sometimes the issue of general is a at 174. agency jury question. Id. (394

Universal Ins. Co. v. 195 Ga. 622-623 Security Lowery, App. 416) (1990). case, In this that its Security Fipps SE2d admitted was Clarks’, he licensed not the when sold the approved agent, policy Further, the Clarks’ the Clarks and tes- application. Fipps took both 9 However, Security’s regarding Georgia law we will not address enumeration whether Security recognizes forgery by independent agent. an never a cause of action tort for I, original appeal it has been waived. raised this enumeration in its and therefore 902) (1957). McClelland, Carmichael Tile Co. v. 213 Ga. Fipps Security’s agent, during tified that the Thus, not the Clarks’. pertinent case, times at issue in this has admitted that Fipps agent, itswas and therefore that fact has been established. We find no merit to this enumeration.

(ii) Security contends the trial court allowed the to con- sider a measure of that had no basis in law inor fact. performance recovery Fraud in the of a contract authorizes the damages. Phillips Corp., tort v. Leisure Automotive 380) (1996); Realty Ben Farmer Woodard, Co. v. Damages given compensa- 74-75 are as injury tion § for the inflicted. case, OCGA 51-12-4. In this forged application attempt deprive used the in a deliberate policy. injury Clarks of the value of their insurance inflicted was subjecting the Clarks to the entire risk of an indeterminate amount expenses by fraudulently inducing of medical them to cancel their existing, legitimate protected insurance that would have them from purchase Security’s risk, ultimately such and to worthless insurance exposed them to that risk. by allowing claims that the trial court erred the former Georgia testify Insurance Commissioner to the value of the coverage equaled Clarks’ insurance the face value of the Clarks’ cov- erage. virtually support However, offers no other than its argument challenge own the trial court’s decision to admit the expert opinion testimony regarding the value of the insurance cover- *7 age. expert testimony Admission of rests the broad discretion of court, and the court’s decision will not be reversed absent an (5) abuse of that discretion. State, Reddin v. 223 Ga. 148, 882) (1996). support ruling, Because the law and facts there is no merit this enumeration. (iii) by allowing contends the trial court erred damages intangible

Clarks to recover coverage for the value of the anguish suffering. for their mental Mr. Clark testified that anguish he suffered providers because wrote his health care and informed them his health insurance had been rescinded. The superior jury court instructed the were recoverable for suffering they mental consequence and emotional distress were a wrong, of Clark a wilful and intentional and the awarded Mr. and Mrs. “general damages” $31,500 of suffering.” each for their “mental “ suffering, unaccompanied by “While injury purse mental person, predicated upon affords no basis for an action wrongful merely negligent, yet damages may acts such be plaintiff recovered those cases where the has suffered at voluntary the hands of the wanton, defendant a or inten- wrong causation of which is the result of the natural tional [Cits.]” feelings.’ suffering and wounded mental We find Tuggle 335, Wilson, v. testimony the Clarks about from the court allowed when no error their suffering. mental summary, of error enumerations of the none

In require reversed. that the fraud verdict be to fraud would related (f) appellate Finally, courts the RICO claim elimination Security argues possibility fraud verdict.10 of a did not eliminate RICO that the for the same reasons fraud claim fails the Clarks’ injury. namely, proximate But cause and lack lack of failed, claim proximate claim, found the RICO as cause on the lack of evidence on appellate fraud claim based courts, irrelevant to the Fipps’ forgery. Williams, See Crawford fraud). (1989) (five argument, Security’s proximate cause elements of argument, rulings appellate was that on that the not show and the basis for and the the that insurance code violations the Clarks could plan illegalities marketed to in the insurance claimed other alleged wire fraud for an mail and Clarks, scheme, (b), formed the basis App. at 599-603 I, 229 Ga. their loss. See caused (c). question argument proximate is irrelevant to the cause That subsequently, Fipps’ forgery and, the Clarks relied on of whether Security’s forgery. reasons, the For the same of the reckless tolerance not have 10, that Mrs. Clark could I, at footnote decision damaged by of dam- is irrelevant to her claim the RICO scheme been ages fraud. judgment RICO short, established that the it has been but directed verdict have been eliminated interference

the that law fraud to send the common

there was sufficient evidence liability jury. vicarious to the and the related issue of claim rulings prohibit appellate not the trial court court did 3. The judgment. appellate entering courts reversed a modified from Security Security proceedings II, I, with consistent and remanded that the and remand did not mandate TV.The reversal Security. judge The trial in favor of enter a trial could merely with the what was consistent had to divine appel [T]he accordingly. act decision courts and the late faith carried into *8 good respected and in awarded, shall be court, direction Enterprises by the full effect court below.” Stafford V that there special considered even the concurrence We note that J., concurring V, (Andrews, App. at 19 P. remaining claim[s].” 249 Ga. “potentially specially). 307) Cyanamid App. v. (1982). Co., American 646, 164 Ga. SE2d Supreme Neither did the Court’s denial of the Clarks’ motion to modify judgment preclude entering the trial court from an doing thing. During appeal amended order the same the second Supreme requested Court, the Clarks that that court enter a modified time, on the fraud claim. At that there were sev- eral enumerations of error related to the fraud verdict premature addressed, had not been and it would have been judgment. Appeals enter modified After the Court of failed to changed. address those enumerations, the status of the case It then duty became the trial court’s to enter an order that reflected the appellate rulings. compensatory damages 4. Neither the fraud claim nor the need by

be retried. prejudicial asserts that the fraud verdict was tainted improper argument effect of the evidence and related to by jury the RICO and charges interference claims and required on those However, claims. a new trial is not because Secur- ity’s liability compensatory damages for fraud and the have been established as a matter of law. Following specific reversal without direction question courts where of law involved, a new trial is not

required. Enterprises, App. See at Further, 650. Stafford “[t]he whole will not be set aside because of error as to a part thereof, where it can be determined from the record how much is (Citations omitted.) punctuation erroneous.” Thompson, Scott v. (1989), Thompson aff’d, Scott, 260 Ga. 164 already It has been established as a matter of law the default judgment against Fipps unappealed entry of a directed Fipps application, verdict that forged signa- falsified the the Clarks’ application tures, and Security. submitted the false It has also Fipps been acting established that scope within the course and authority during Fipps his transaction, was not the Clarks’ agent at the time, and that the measure of was the full policies. Supreme value of the Court added that there were suffi- Security’s cient facts to submit liability the issue of vicarious to the recklessly tolerating forgery “long learning after Fipps forged (2). application.” Security II, 270 Ga. at 168 by Security during Certain helpful admissions the trial are also party’s to our open determination. A admission in court is an admis- judicio sion in and is therefore conclusive. Lamb v. Decatur Fed. Sav. 588.(411 527) (1991). Assn., &c. admitted in aged Ga. open “clearly injured court that the Clarks were or dam- [sic] Fipps’ as a result from Mr. fraud.” The President of Secur- *9 24 Fipps’ responsible fraud for

ity held should be testified Security’s injured. Both Clarks were that the and misconduct expert the admitted vice-president witness its actuarial policies represented $4,100,000. promises was the the value of 442) (250 (1978), is SE2d 612 Busbin, 242 Ga. Co. v. Ga. Power general jury on four point. verdict entered a In that case not on jury. only properly to the submitted was however, one of those claims; Supreme not Court could because was warranted A new trial upon proper basis. a was entered the verdict whether determine our separate special jury the fraud and verdicts on case, returned proper for the basis above, there was claims, as shown RICO fraud award. on enumerations that are based of error address the We now 5. entry verdict. on the fraud modified of a

the trial court’s (a) puni- liability award for the amount of the for and Both the on all damages was based the award retried because must be tive App. Thompson, just at 193 Ga. Cf. Scott v. claims, not fraud. three 488 (2) (the it can be set aside where need not be whole erroneous). much is how determined litigation expenses § 13-6-11, regard an under OCGA to With expenses evidence affirmed there must be award of fees and App. Clary 131, support 132 S., Assoc., & P. S. Inc. v. to it. A. 375) (1986). (3) (342 species “[E]very tort invokes a intentional SE2d expenses wronged person to recover so of of faith and entitles bad attorney Hudspeth litigation Constr., A H v. & fees.” (1997). (495 322) (3) (a) jury App. Because the SE2d 70, Ga. authorized to faith. Id. find to find bad fraud, it was also authorized e.g., relitigated. liability attorney See, fees need not be Therefore, for Attorney Law, Chastain, 254 Ga. Joel, at P.C. v. C. David 746) (2002). Nevertheless, the Clarks SE2d 597-598 they attorney to the claim on to fees attributable entitled prevailed, Telecom v. Id.; Southern Cellular i.e., the fraud claim. 606) (1993). (433 See also R. T.Patter- Banks, 209 Ga. (5) App. 578, Head, Funeral Home v. son (1994) only). Accordingly, precedent (physical the amount must be retried. award (b) purposes those enumera- retrial, we must address For likely to recur. tions argue Clarks to it error to allow the

First, contends was against damages any punitive not would be assessed that paid paid who were not numerous reinsurers it, be but would argument was based parties their Clarks admit that the case. The to scheme,” attempt fraud to the “insurance link the reinsurers on an aspect eliminated, has been of the case i.e., scheme. That the RICO may justification on not be used the evidence therefore that grounds pos- other retrial. Because we are unable to determine all sibly introducing prohibiting evidence, or this we decline to now rule question prospectively. remainder of this improper jury it

Second, was to instruct it should con- pay punitive sider the fact that the Clarks would have tax on the damages. punitive statute, Under the “the sole issue for money necessary punish is the amount of the defendant and Therefore, deter future it misconduct. is irrelevant who will be com- pensated by ultimately plaintiff much award how will (4), Uniroyal Co., receive.” Ford v. Tire Goodrich Ga. 230-232 *10 jury special interrogatory Third, after the returned its verdict indicating specific required form that it did not find the intent (b) (g), necessary § impose OCGA 51-12-5.1 and in which was order to damages, punitive $250,000 more than in the trial court directed the only special interrogatory finding to answer, reconsider this it liability was “inconsistent” the with RICO and fraud found. Because longer ruling unlikely the RICO viable, claim is no this is to recur. (c) finding liability The trial court erred in the Clarks’ for appeal only portions the costs of the earlier was limited to those of (not appellate transcript) actually the record the that were by Security appellate appellate referred to ings. in its and briefs other fil- provides: § judgment OCGA 5-6-5 “If is reversal, there of the appellant judgment shall be entitled to a for the amount the costs against appellate appellee the court the as soon as the remittitur authority partial is returned the to court below.” findWe no such award.

Case No. A01A2450 companion Security case, the Paul and St. contend the trial by refusing supersedeas court erred to declare the bond void after the appellate case was earlier remanded from the court. judgment, pursuant §

After the court, first the 5-6-46, to OCGA Security post supersedeas ordered bond. St. Paul the issued bond provides in the $16,220,000. amount of bond first that St. Paul pay will the Clarks the full amount of the bond. The condition is then explained Security appealed Judgment has “from Final the filed August Finally, language operative 6, on 1996.” the of the bond that explains following: it when shall become is void the [Security] pay charges THEREFORE,

NOW all costs, shall may against and be awarded it said appeal, [Security] pay judgment part and if shall the or that judgment obligation affirmed, which is then this shall payment; judg- become void to the extent of such and if the vacated, reversed, or overturned, modified ment is over this jurisdiction exercising court way by any appellate the extent become void to matter, obligation then this shall overturned, vacated, reversed, modified; or is judgment the remain full force effect. otherwise to be and V, St. moved to dis- case after Paul remand Upon void. The trial and to declare bond charge obligations its bond entered and, judgment, in the modified final motion denied the modi- Paul for the amount of St. judgment against fied judgment. appellate erred the trial court because

St. Paul contends thereby causing the bond obli- courts reversed the original agreement. simple void terms gation pursuant to become We disagree. one unambiguous subject the contract

“[W]here not) (whether or construction, liability any surety compensated by implication is not extended terms of the contract beyond to be Co., Gen. Ins. v. Brock Constr. Ga. Houston Co. interpretation.” Morri- (1978), grounds, limited on other Co., son Co. v. Preston Assurance Carroll

520) (1985).11 above, reversed have held the RICO and the

As we IV, with proceedings case remanded for consistent II, I. Thus, the bond was voided vis-a-vis the obligation But, RICO did not reverse the verdict judgment. courts reference in specifically incorporated by which had been *11 Therefore, judgment. part original judgment original trial had courts. The court by appellate not been eliminated judgment by following entered the modified instructions Accordingly, of the courts. the bond remained opinions full of the portion original judgment. force and effect as trial did not err. in Case A01A2450. Judgment Judgment No. affirmed affirmed Blackburn, J., in Case C. part and reversed in No. A01A2451.

part Barnes, JJ, Johnson, J., Ruffin, Eldridge, Ellington Phipps, P. J., Andrews, Miller, judgment only specially. concur. concurs in J., J., Smith, J., Mikell, P. P. in part part. concur and dissent in disqualified. surety compensated here. St. Paul a

Appendix. IN THE SUPERIOR COURT OF COUNTY EARLY STATE OF GEORGIA CLARK, et S. al. GORDON

Plaintiffs, NO. CIVIL 95V-261 ACTION LIFE INSURANCE

SECURITY COMPANY, al. et

Defendants.

VERDICT FORM Part1 you by preponderance Do find

1. a the evidence defendant plaintiffs' wrongfully rescinded coverage? insurance "Yes" or Answer "No".

ANSWER: X YES _NO you preponderance Do find plaintiffs

2. a of the evidence that damaged injured as a result of were such rescission? "Yes"

Answer or "No". _NO

ANSWER: X.YES you preponderance Do find 3. of the evidence that the defendant upon plaintiffs? fraud committed "Yes" or "No".

Answer _NO

ANSWER: YES X. you preponderance Do find plaintiffs 4. evidence that damaged injured or as any? a result of this "Yes" or “No". Answer

ANSWER: YES _NO .X *12 you by preponderance Do

5. find a of that defendant the evidence faith, plaintiffs bad has been litigious, put has acted or has stubbornly trouble and expense? unnecessary "Yes" or "No".

Answer

ANSWER: _N0 X YES defendant find Do a of evidence preponderance you by 6. Georgia RICO Law? offense under any predicate has committed in an "No", "Yes" "X“ place or answer was "Yes" your Answer a of each has been established by offense believe predicate in front you blank of the evidence. preponderance YES

ANSWER: _NO Taking Theft by

X Theft by Deception

Y Forgery Degree in the First

X False Statements Perjury

Mail X Fraud

X Wire Fraud a Do find you by preponderance 7. evidence the defendant 4(a) maintaining Section of the acquiring RICO violated Law an has or interest over through personal control property, or money, pattern racketeering either or activity, directly indirectly? "Yes" or "No".

Answer _N0 ANSWER: X YES Do find preponderance defendant you evidence 8. 4(a) maintaining acquiring Section RICO Law or an interest violated has racketeering an through over enterprise either pattern activity, control *13 indirectly? directly or "No", “Yes" your or place

Answer and if an "X" answer "Yes" in the was enterprise each you in front in which in find or control over blank an interest acquired pattern through racketeering activity. or maintained a _NO YES ANSWER:X Multiple The Unit II Trust

X Corporation Insurers Administrative

X you by preponderance plaintiffs a Do find 9. of the evidence that the by 4(a) damaged injured or reason of such were violation of Section of the RICO Law? "Yes" or "No".

Answer _NO

ANSWER: YES X you by preponderance Do find a 10. of the evidence that the defendant 4(b) Section by of the RICO Law conducting participating has violated or in an through pattern enterprise a of racketeering activity, directly indirectly? either or "No", "Yes" your or place Answer and if answer was "Yes” an "X" in the enterprise of each you front blank find the defendant conducted or through pattern participated of racketeering activity. YES _NO

ANSWER: X Security Life Company Insurance

X y Multiple Unit II Trust

y Corporation Insurers Administrative you by preponderance Do find 11. plaintiffs of the evidence that the damaged 4(b) or injured reason of such violation of Section of the RICO Law? "Yes" or "No".

Answer X.

ANSWER: YES NO Do defendant you find 12. preponderance the evidence 4(c) persons or more conspiring with one Section RICO Law of the violated has 4(a) 4(b) Law? endeavoring RICO violate or Sections of the or “X" In an place "Yes" "No", "Yes” or if your answer was Answer conspired defendant which whom believe person you of each front blank 4(a) 4(b) RICO Law. Section violate

ANSWER: _NO XyES II Unit Trust The Multiple

X X Inc. American Financial Enterprises, X Congress Life Insurance Company III American Accident Reinsurance Group

X X Life Insurance of North Company Allianz America United Life American Insurance Company X X Combined Insurance Company America Life Insurance Crown Company X

X The Life Equitable Assurance United States Society X Mercantile and General pic Reinsurance Company X American North Reassurance Company

X Mutual Life Principal Insurance Company Mutual Life Assurance State of America Company X X Life Assurance Company Sun of Canada X Occidental Transamerica Life Insurance Company Insurance of America Company UNUM X Life General Insurance Connecticut Company

X X Cologne Life Reinsurance Company Life Manufacturers

X Insurance Company Holt, Duncanson Inc.

X Howard Johnson & Company Inc, Reinsurance Alternatives,

X Insurers Administrative Corporation

Interlock, Inc.

y Services, Compliance Insurance Inc. TrustMark National Bank

^X Ltd. SentryCorp.,

X Hassan Stanley

X Do you find by 13. a preponderance of the evidence plaintiffs damaged 4(c) injured by reason of such violation of Section of the RICO Law? "Yes" or "No".

Answer YES

ANSWER: ){. _NO What 14. amount do you find by a preponderance of the evidence to be just, and full, reasonable compensation injuries the plaintiffs' caused conduct the defendant? *15 in dollars for Answer each item.

(1) Damages Loss of Insurance Coverage: for Brady Clark's $ ^[2] , 010, ^[00] 0 .00 (2) Damages for Clarice Clark's $ 2,010,000.00 Loss of Insurance Coverage: (3) Damages General for Brady 1, 3 50 0.00 $ Clark's Mental Suffering: (4) Damages General for Clarice Clark's Mental Suffering: $ 31,500.00 Litigation: $ 792, 902.08 Expenses of 865, 902.08 $

TOTAL convincing find you Do clear and acts 15. evidence that defendant willful malice, show misconduct, oppression, omissions wantonness, or that entire want of care conscious raises a presumption rights punitive and the so that consequences others safaty indifference be defendant? or deter the imposed punish, penalize should n Yes'1 "No". Answer X_ YES _NO ANSWER: WE ALL this day July, 1996. SAY

SO OFFICE IN

FILED COURT OF SUPERIOR CLERK *16 IN THE SUPERIOR COURT OF COUNTY EARLY STATE OF GEORGIA CLARK, et al. B. GORDON

Plaintiffs, 95V-261 NO. CIVIL ACTION INSURANCE LIFE

SECURITY COMPANY, al. et

Defendants.

VERDICT FORM II Part be find assessed What do should punitive you amount

16. defendant? against in dollars.

Answer

$ 1,500,000.00 Were the acts and with specific omissions done

17. defendant harm? cause intent "Yes" or "No".

Answer X_ YES ANSWER: _NO WE ALL this day

SO SAY 1996. July, N*/ OFFICE IN

FILED COURT SUPERIOR OF CLERK ÜU COUNTY, GEORGIA PARLY TLjI.31 SfUjJlil ^dWnryQa (cid:127) Judge, concurring specially. Miller, *17 for their Presiding Judge Pope and I court below commend the of various rulings the the interpret to and efforts discern valiant unfortunate, indeed, the It is that in this matter. decisions appellate such efforts. history required of this case has and tortured long and promptly be resolve cases justice system of the should goal of the regardless by parties, issues raised the bring closure the consideration, how- After due the before the court. complexity of facts only. ever, judgment I concur in can in dissenting in and concurring part Presiding Judge,

Andrews, part. No. A01A2451

Case in, acknowledg- welcome, majority’s 1. I and the fully concur case, history of this ment, late in the tortured although Corrupt [Racketeer lost their Influenced & clearly that “the Clarks (‘RICO’)] the directed hold- Act and verdict Organizations judgment by rights interfered with their Security wrongfully property that ing coverage.” their insurance wrongfully rescinding (a), that the issues of the I concur in Division 5 which concludes attorney liability punitive fees and for and amount of dam- amount of the on all three ages “must be retried because award based (a) claims, I of 5 portion fraud.” must dissent to the Division just not for fees was established liability attorney which concludes that below, I because, subject explained the amount is to retrial as on the remain- Security Life is entitled to new trial Clarks’ believe (b) I action, attorney fees. concur in Division 5 ing causes of concludes, argument other that the Clarks’ among things, which reinsurers, not by would be made any punitive damages of payment i.e., scheme, fraud the RICO Security, was linked to the “insurance may evidence not be used justification scheme” and that “that the (c) found the trial court I concur in Division 5 which on retrial.” original costs on the Clarks on the imposing only partial erred appeal. Divi dissent, however, I from vigorously

2. must the them, somehow con majority opinion. majority the sions Clark, cludes, Co. v. 229 light even of Ins. Ga. Life (494 388) (1998) I); Clark Ins. (“Security v. 593 SE2d Life (509 602) (1998) II’); Co., (“Security 270 165 Ga. Life 234) (2000) IV”); Clark, (“Security Co. Ga. 44 Ins. v. 273 Clark, Ins. Co. Life Clarks, Clark, testify V”), Mr. who did (“Security the both trial, Clark, not show dam- testify Mrs. who did otherwise at ages upon claims, entitled, incurred her on her of based special interrogatory case, the verdict form used in this to have a judgment upon $6,000,000 modified over entered in their favor trial remand this case to the court. (a) ignored by, by, majority, As noted tut then following entered trial trial stated that the Clarks against “have elected to favor have entered their Georgia [RICO] Defendants on their asserted under the claims special interrogatories Act. Of form, . . .” the 15 used on the verdict upon emphasis placed by majority, which so much Numbers through specifically Following refer to the RICO claim. Number “yes” question 13, in answered to the whether (c) damaged Clarks were “reason of such violation Section you “[w]hat Law,” asked, RICO Number amount do find . . . just, compensation plaintiffs’ full, to be the and reasonable for the *18 injuries by wrongful caused the of conduct the defendant?” In response, jury the full answered the face value of both Mr. and Mrs. policies, plus damages suffering, Clarks’ insurance for mental and expenses litigation.12 thereby, of in and, Even the event of a default liability, plaintiff required pres- of resolution the issue of a is still “to establishing damages. Agnew ent evidence those See v. AGreat & P (1) (502 735) (1998).” Co., Tea 232 Ga. 710 Conseco Servicing Corp. Hill, Finance v. 252 Ga. 468) (2001). Obviously, required it follows that the Clarks were to prove damages, against Fipps. their actual in even order to recover

Interrogatories wrongful refer to the claim, rescission upon acknowledged by majority, which, improp- as the trial the erly liability Only directed a verdict as to in favor the of Clarks. Interrogatories They 3 and relate the Clarks’ fraud claim. ask if jury [singular the found the “that defendant and otherwise unidenti- though damages fied, even the issue of was still unresolved as to Fipps] upon plaintiffs”; plaintiffs committed a fraud the if “were injured damaged any.” upon as fraud, of result this It is the Interrogatories majority slender reed of 3 and 4 that the bases its Clarks, more, conclusion the without are entitled to a policies the full face value of their medical and life insurance damages, although majority acknowledges other the the imposed compensatory damages in $4,073,000 the amount of “with- distinguishing among (fraud, wrongfiil out the three claims interfer- RICO).” appear ence, and This also would to be in direct conflict with 12 Interrogatory punitive damages, majority 15 dealt with which the concludes must be claims, retried just because “the award was all based on three not fraud.” upon majority’s discern it is unable to conclusion that the claim imposed, punitive therefore, retrial is and, required. revealing following majority statements also makes The Security Security Security II,

regarding I, claim, on fraud based Security V: IV, and

[T]he it is still in the sense that fraud claim is available precluded of election of remedies. the doctrine not Supreme made clear that IV The Court... support possible ground common law fraud there was a verdict. Finally, RICO elimination of the claim possibility fraud of a verdict. courts did not eliminate (Emphasis supplied.) remaining disagree upon on claims of that, not a retrial

I do possibility is a a fraud verdict. rescission and there (3) (Andrews, concurring specially). supra R J., V, at 19 See agreement light majority’s years from the This, however, is removed judgment entered without a retrial court’s modified with trial legally complete of evidence of recoverable actual and in the damages. absence Servicing majority supra. Corp. Hill, Finance See Conseco (c) (b) IV In Division concludes remaining “reopened possibility enumerations of error that the regarding (Empha- not I were moot.” possibility not addressed fraud supplied.) First, noted that sis it is regarding alluded to the dissent enumerations fraud dispositive nothing. majority, Security ing therefore, cit- is, IV (1996),13 Martin, 266 Ga. 353 nonethe- Roulain v. Security’s solely a motion for concludes, failure file less based following V, that there *19 or writ of certiorari reconsideration may Security “question have waived the issues is represented by about whether a related to fraud.” It is the enumerations Security judgment on unclear, however, V reversed the entered since Security’s required in favor be RICO and that a verdict verdict why Security file either a motion for claim, on would directed reconsideration that appeal appears it to in an have or a writ of certiorari “remaining majority, nonetheless, The then addresses the won.14 relevant to the fraud verdict.” enumerations that, proposition an court has appears to for the once That case stand case, by ruling in a subse in a criminal the defendant bound that affirmed quent conviction corpus proceeding. civil habeas petition Security or motion for reconsideration That did not either for certiorari file way right argue now fol following Security of its to these errors or V is in no determinative (1978). Dekle, lowing Ga. 842 retrial. Todd v. Security trial I that the in of error actual enumerations The erred: (i) directing on their claim in of the Clarks a verdict favor “in rights.” property did so err. The trial court with interference (2), Security Security by IV, Security supra II. left untouched I, at 603 supra at 44.

(ii) denying Security’s directed verdict on motion for “in Security acknowledged Security I, in court, as claim.” The trial RICO by majority, Security did so err. IV, and now the II, (iii) agent.” directing Fipps was not the Clarks’ a verdict that “in (2), reversing supra Security II, err. at 167 trial court did not (1) (d). any purposes Fipps Security supra therefore, of is, I, at 602 Security. agent retrial,

(iv) disputes permitting introduction of evidence of between “in ruling Security was mooted because other insureds.” This only defraud, i.e., the the insurance scheme to evidence dealt with RICO claim.

(v) permitting pre-trial in Plaintiffs “in sanctions orders and its judgment Security original argue pre-trial I at trial.” The to provided orders pre-trial were moot and the that some of these orders awarded on were “subsumed the amount amounts assessed others investiga- expenses as the Plaintiffs’ overall in this final including attorney’s litigation, fees.” This matter is moot tion Security’s on the is to entered favor a directed verdict be because (a) majority requires claim and because Division RICO attorney punitive damages fees. These items now retrial of only any possible favor on course, verdict in the Clarks’ relate, to wrongful rescission and fraud. the retrial of their claims for (vi) contradictory giving The instruc- “in instructions.” Georgia provisions dealt with Insurance Commission tions at issue governing only related, therefore, RICO claim. insurance and to the (vii) damages.” Because, related to “committed numerous errors by pursuant IV, II I, affirmed claim, their RICO Clarks were entitled to no on judgment appealed upon entered, from was claim which the argued the extent it can be issue is moot as to the RICO claim. To upon that, have divined remand from its suc- should pos- impose appeal, would cessful trial court interrogatories represented on the verdict fraud claim two sible prospectively anticipated have this and form and should Security may argue illegality damages, argued this such “any exception following to a not waive valid now, retrial. One does failing arguably law in excess of that authorized verdict object proposed itself form or to the verdict the court’s verdict

immediately upon Battle, its return.” Scott v. (4) (a) (548 124) (2001). majority regarding possible that,

The verdict, finds fraud Security’s objection testimony to the of former Insurance Commis- Ryles transcript Ryles sioner was not valid. The reflects that testified extensively regarding by Security comply numerous failures with regulations, insurance the heart and soul of the Clarks’ RICO claim Ryles’ premised testimony represents which was also on fraud.15 over (1) (b) pages transcript. Security supra I, As held in at 599 by Security (3), supra II, affirmed at 168 violations of the insurance predicate code cannot serve as acts for RICO. only by Ryles, statement made in the context of his testi-

mony concerning damages regulatory regarding violations, these the Clarks’ coverage promised by

was that the maximum value of the Insight plan Answer to the Clarks was the limits of their lifetime coverage. Security’s objection I believe to this evidence should have been sustained and the allowance of the evidence was a clear abuse opinion how, of discretion. It is in retrial, unclear an such from an expert regarding regulation probative of insurance would be damages wrongful suffered the Clarks as a result of fraud alone or property rights. interference with

Regarding proof damages, again I note that Mrs. Clark did not testify regarding any damages at the trial and no were oth- proven regarding erwise her. Mr. Clark testified that he had incurred expenses paid. $62,330.41 medical had not objection Therefore, I believe that had a valid to the evi- regarding damages might might dence to the extent that evidence upon not be relevant the retrial of the interference and fraud claims alone.

(viii) relating punitive damages.” “committed numerous errors (a). by majority The trial err, majority court did so as stated in Division 5 (c) Although mightily has striven to indicate that thereby issues on remand are “law,” issues of requiring required trial, no new a new trial is because the Clarks prove must all fraud, the elements of their actual damages Wyckoff, Fipps. e.g., See, flowed from such even as to Bacote v. authority upon by majority recognizes

Further, relied prior Appellate that, even to both the Civil Practice Act and the Prac- required Act, tice a new trial was when a is reversed with- specific out direction to do otherwise. fraud, alleged predicate acts, require proof Both mail and wire [or as of a “scheme I, supra

artifice] to defraud.” at 598. founded upon the writ of error is rule, where As a general involved, and fact were law in which both trial below [here in error the plaintiff is that complaint where *21 it, and gain he was entitled to his case when Security] lost it, gain he was entitled to that opinion court is of where this court below reason, where, judgment for court, way of unless this reversed, new trial follows is else. direction, something dictates (1878), cited in Son, 528, 530 & Schley Stafford Schofield (297 646, 649 Co., Cyanamid v. American

Enterprises 307) (1982). Co., 121 Ga. v. Travelers Indem. Worley also See 93, 94 Co., 209 Ga. App. Pilot Ins. In Clark v. Life Jefferson inter- using special when a verdict form (1993), even trial, this Court concluded the initial during was used rogatories required. a new trial was judgment, reversal of that that, upon in from this Court of the remittitur Upon receipt So it is here. trial, new authorized to conduct a V, the trial court was more, less. nothing nothing

Case No. A01A2450 remand, Paul Fire & upon trial is St. required 3. Since a new was entitled to have the Company supersedeas Marine Insurance because, in declared void as stated bond on behalf posted vacated, in bond, overturned, “if is reversed judgment matter, over this by any exercising appellate jurisdiction way shall become void to the extent obligation then this overturned, vacated, reversed, modified. . . .” that, minimum, judg- must concede at a majority

Even modified, in the modified ment has been as reflected two subject appeals. is the of these in Presiding Judge, concurring part dissenting

Smith, part. in Presiding Judge

While I do not with all that is said agree A01A2451, I do Case No. opinion, agree Andrews’s is entitled to a new trial on the Clarks’ Company Life Insurance action, fees. As to Case No. including attorney causes of A01A2450, I further that St. Paul Fire & Marine Insurance agree void. supersedeas was entitled to have the bond declared Company concur in and dissent part part. I therefore respectfully April Decided King Spalding,

Porter, Dosier, Porter, Orrison & J. Alexander & Byron Attridge, Benjamin TV, II, F. Easterlin S. Stewart Haskins for (case A01A2450). appellant no. Sutherland, Brennan, Barwick, Asbill & William D. Teresa W. (case A01A2451). Roseborough, appellant McMillian, Carla W. no.

Gregory, Christy Hardy Gregory, Preyesh Maniklal, Jr., & K. appellees. Maniklal, Stone, Dean, William S. Kevin R. Kyle Singer, Willingham,

Bovis, Burch, Love, Peters, & James E. Monyak, Willingham, Gilleland & Allen S. Carithers, Michael T. Mabry Patterson, McClelland, Scott M. & McClelland, Walter B. amici curiae.

A01A2520. KLAUB v. THE STATE.

Pope, Presiding Judge. by jury

Ronald Klaub was convicted of two counts of vehicular driving suspended homicide, run, hit and with a license. He appeals raising arguments, convictions, his several (1) by failing grant the trial court erred a directed verdict of acquittal charge through as to the of homicide vehicle the commis- (2) driving; failing grant sion of reckless a directed verdict of acquittal charge through as to the of homicide vehicle the viola- § failing tion 40-6-270, of OCGA statute; hit and run juror strike a for cause. We reverse Klaub’s conviction for vehicular through driving. homicide the commission of reckless We affirm the judgment. light holding remainder of the of our case, in this we resentencing remand this case to the trial court for consistent with opinion. this light Viewed in the most verdict, favorable to the the evidence presented night at trial showed that on the December p.m., between 7:00 and 8:00 he was wife, Klaub told Ward, his Charlene going taking Mercury Topaz. car, out and her a 1986 When he p.m., returned around 11:00 Klaub informed Ward that he had hit a dog damaged garage her car. Ward went to the and saw that the headlight had been broken and that the windshield was cracked. morning body

On the 10, 1998, December of Joeann lying just Edwards Swift was found facedown in some leaves off the roadway Hazelrig near the intersection of Moreland Drive and Drive. night pay phone before, The she had walked to a to call her son in anyone. York; New that conversation was the last she had with body pieces; victim’s was surrounded automobile some of these