LAURENS COUNTY BOARD OF EDUCATION et al.
v.
DEWBERRY.
A08A1503.
Court of Appeals of Georgia
February 19, 2009
JOHNSON, Presiding Judge.
We granted this discretionary appeal to the Laurens County Board of Education and its current insurer, Georgia Education Workers' Compensation Trust Fund ("GEWCT"), to review the superior court's order affirming the award of the Administrative Law Judge and the Appellate Division of the State Board of Workers' Compensation in this dispute between the Board of Education's current and prior insurance carriers. For reasons that follow, we affirm the trial court's order finding that Walter Dewberry experienced a fictional new accident and holding GEWCT, rather than the Board of Education's prior insurer, the Georgia School Board Association Self-Insurance Fund ("GSBA"), responsible for Dewberry's claims.
The relevant facts of this case are not in dispute. Dewberry worked as a custodian for the Laurens County Board of Education. His job duties included mopping, stripping, and buffing floors and changing light bulbs. On August 1, 2000, he was using a machine to strip a floor when the cord wrapped around his leg. He slipped and injured his right knee. Since that time, he has continually experienced pain and problems with his knee. Immediately after his fall, a doctor diagnosed Dewberry with a medial meniscus tear of the right knee and underlying degenerative arthritis of the right knee. Dewberry initially underwent conservative treatment for several months, while he continued to work. Because he showed little improvement, however, his doctor recommended arthroscopic surgery, which was performed on September 11, 2001.
Following the surgery, Dewberry was out of work for six weeks. The Board of Education's insurance company at that time was GSBA, which paid all of Dewberry's medical bills. Dewberry did not request and GSBA did not pay Dewberry any income benefits. After the six-week recovery period, Dewberry returned to work, resuming his previous duties with certain limitations. On February 2, 2002, Dewberry's physician issued a permanent disability rating of 9 percent to the lower extremity or 4 percent to the whole person. However, Dewberry continued to work, and GSBA did not pay him any permanent partial disability income benefits.
In 2004, after GEWCT assumed insurance responsibility for the Board of Education, Dewberry sought additional medical treatment for his knee pain and discomfort. The doctor noted that Dewberry was experiencing progressive right knee discomfort due to arthritic damage in his knee. According to the doctor, he "would not relate [Dewberry's] increased progressive symptoms solely attributable to his previous workman's comp injury." The doctor advised Dewberry that knee replacement surgery would likely be necessary, but Dewberry declined surgery at that point. The doctor prescribed pain medicine and returned Dewberry to regular work duty.
Dewberry again saw the doctor in June 2004, continuing to complain of pain and discomfort in his knee, at which point the doctor gave him a work modification to stay off ladders. After the June doctor visit, GSBA, which had been paying all of Dewberry's medical bills without question, controverted the claim. GSBA subsequently resumed paying for medical treatment after reaching an agreement with Dewberry to have a different doctor provide treatment.
On July 7, 2005, Dewberry went to see a new doctor, who eventually recommended knee replacement surgery. This doctor noted that the knee replacement was related to the underlying injury of August 2000: "Right knee continues to be symptomatic and is a result of the original injury." Dewberry agreed to the surgery, which was scheduled for November 8, 2005, but GBSA canceled the surgery and stopped paying for medical treatment. On November 17, 2005, the doctor placed Dewberry on restrictions with no weight bearing on his right knee until the insurance issue was resolved so that Dewberry could receive knee surgery. The Laurens County Board of Education did not accommodate his light duty restrictions, and Dewberry was forced to stop working on November 18, 2005. Dewberry then filed a claim with the Georgia Board of Workers' Compensation.
The Administrative Law Judge found that after Dewberry's August 1, 2000 injury, he continued to perform the duties of his employment until November 18, 2005, at which time he was forced to cease work because of the gradual worsening of his condition, which was at least partially attributable to his physical activity in continuing to work. Thus, the ALJ reasoned that Dewberry suffered a fictional new accident on November 18, 2005, and held GEWCT, which had assumed insurance coverage for the Board of Education as of August 1, 2003, responsible for paying Dewberry's claims arising out of the fictional new accident. The Appellate Division affirmed the ALJ's award, and the superior court also affirmed. The Board of Education and GEWCT now appeal to this Court.
GEWCT argues that, as a matter of law and fact, Dewberry experienced a change in condition for the worse under OCGA § 34-9-104, not a fictional new injury, and thus GSBA remains responsible for paying Dewberry's claims. We disagree.
In reviewing a worker's compensation award, this Court must construe the evidence in the light most favorable to the party prevailing before the appellate division.(fn1) The findings of the State Board of Workers' Compensation, when supported by any evidence, are conclusive and binding, and neither the superior court nor the Court of Appeals may substitute itself as a fact finding body in lieu of the State Board.(fn2) Moreover, whether an employee's inability to continue working is caused by a fictional new accident or by a change of condition is a question of fact for the ALJ, and such a finding of fact may not be disturbed on appeal if any evidence supports it.(fn3) Where an employer changes insurance carriers, the carrier on the date of a fictional new accident is liable for the claim, even where the condition existed prior to the carrier's coverage.(fn4)
ALJs and this Court are often required to distinguish between old and new injuries in worker's compensation cases. It is well-established, however, that
[a] necessary factual predicate to a determination that a change in condition, rather than a new injury (or new accident), has occurred is that there has previously been an award (or equivalent) for the injury whose worsening has produced the present disability. . . . In cases where a claimant is injured and receives workers' compensation benefits, but subsequently returns to work and then undergoes a gradual worsening of his condition to the point where he is no longer able to perform his ordinary work, he has undergone a change in condition. A claim for a change of condition is a claim for additional compensation under the original award.(fn5)
Thus, statutory and case law make it clear that a change in condition "can occur only when the claimant has previously received benefits for a compensable job-related injury."(fn6) If a claimant is injured on the job but continues to perform the duties of his employment without receiving any workers' compensation benefits, but subsequently is forced to cease work because of the gradual worsening of his condition, which is at least partially attributable to his physical activity in continuing to work, we have held that the result is a fictional new accident, and the date of the new accident is the date that the disability manifests itself.(fn7)
In the present case, the ALJ found that after Dewberry's August 1, 2000 injury, he continued to perform the duties of his employment without receiving any workers' compensation benefits until November 18, 2005, at which time he was forced to cease work because of the gradual worsening of his condition, which was at least partially attributable to his physical activity in continuing to work. The ALJ deemed Dewberry's injury on November 18, 2005 a fictional new accident. The record contains evidence supporting this conclusion.
Contrary to GEWCT's argument, the mere fact that Dewberry missed work following his initial accident does not eliminate the establishment of a fictional new accident. Case law and statutes make it clear that new accident theory cases apply in those instances where a claimant is injured and goes back to work without any agreement or award as to that injury having been approved or issued by the State Board of Workers' Compensation.(fn8) That is exactly what happened in this case. It is undisputed that Dewberry returned to work after his injury without any agreement or award as to that injury being approved or issued by the State Board of Workers' Compensation. He then continued to work his regular job until November 18, 2005. Without any workers' compensation award or voluntary payment of income benefits subsequent to Dewberry's initial injury, GEWCT cannot establish a change of condition under OCGA § 34-9-104 (a) (1).(fn9)
Attempting to bypass the prior award or voluntary income benefit payment requirement for a change in condition, GEWCT argues that GSBA should have paid income benefits to Dewberry based on his original injury and that the lower court awards unjustly reward GSBA for its failure to pay these benefits. However, there is no evidence in the record that Dewberry was legally due any income benefits. An employee has the initial burden of proving a disabling, work-related injury entitling him to workers' compensation benefits.(fn10) Here, the record is undisputed that Dewberry never filed a claim for benefits, never proved a compensable injury, and never established the extent of his injury before an ALJ until 2006.
Moreover, although GSBA paid medical benefits, the record does not show that it ever accepted the August 12, 2000 injury as compensable. GSBA cites no case, and we can locate no case, in which the voluntary payment of medical benefits constituted an "award" so as to allow a claimant to file for a change in condition. In fact, such a proposition would undoubtedly halt the voluntary payment of medical benefits by employers, clearly an undesired result. We agree with Dewberry's argument that where an employer/insurer pays only medical, rather than income, benefits to a claimant, there has been no establishment of the claimant's condition so that any subsequent action by the claimant for income benefits is not a "change in condition" action.(fn11)
Because Dewberry never received a workers' compensation award or voluntary payment of income benefits for his original on-the-job injury, he cannot establish a change in condition.(fn12) The ALJ's finding that Dewberry suffered a fictional new accident when he was forced to cease work on November 18, 2005 is supported by the evidence, and we are, therefore, constrained to uphold this finding.(fn13) The Appellate Division and the superior court were correct in affirming the ALJ's conclusion that GEWCT, as the insurer at the time of Dewberry's fictional new accident, is responsible for paying the claims.
Judgment affirmed.
Barnes and Phipps, JJ., concur.
-----
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Railroad Injury Lawyer Augusta GA - INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA
v.
APAC-SOUTHEAST, INC. et al.
A09A0081.
Court of Appeals of Georgia.
April 17, 2009
BERNES, Judge.
This appeal concerns the construction of an insurance contract resolved by the trial court on summary judgment. The question presented is whether the plaintiff, APAC-Southeast, Inc., is an additional insured under an excess liability insurance policy issued by one of the defendants, the Insurance Company of the State of Pennsylvania ("ICSOP"). The trial court answered the question in the affirmative. We agree and therefore affirm.
Summary judgment is appropriate if the pleadings and evidence "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." OCGA § 9-11-56 (c). On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party. Northwest Carpets v. First Nat. Bank of Chatsworth, 280 Ga. 535, 538 (1) (630 SE2d 407) (2006). "A grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. It is the grant itself that is to be reviewed for error, and not the analysis employed." (Citations omitted.) Albany Oil Mill v. Sumter Elec. Membership Corp., 212 Ga. App. 242, 243 (3) (441 SE2d 524) (1994). Mindful of these principles, we turn to the record here.
The Subcontract. APAC is a transportation construction contractor engaged in the business of road construction and paving. In 2002, APAC entered into a contract with the Georgia Department of Transportation to serve as the general contractor on a road rehabilitation project in Monroe County (the "Contract"). Later that year, APAC entered into a subcontract with Costello Industries, Inc., under which Costello agreed to perform part of the road rehabilitation work (the "Subcontract"). Pursuant to Paragraph 5 of the Subcontract, Costello was required to procure insurance on behalf of APAC:
5. INSURANCE: [Costello] shall, and shall cause each of its subcontractors to, maintain (i) worker's compensation and employer's liability insurance to fully protect against loss from personal injury, including death, to any of their employees, (ii) comprehensive automobile liability, general liability (including blasting, collapse and underground, product liability and completed operations coverages,) contractual liability, owners and contractor's liability, builders risk, and property damage insurance, (iii) and any and all other insurance required by the Contract. All such insurance shall be written by insurers acceptable to [APAC], having minimum coverage of $1,000,000 combined single limit, on an "occurrence" basis and not on a "claims made" basis. All policies, except for worker's compensation policies, shall name [APAC] as an additional insured with primary coverage (with any other third-party coverage provided for [APAC] to be deemed as excess only) and shall indemnify, defend and protect [APAC] from all claims, expenses and liabilities in any way connected with any act or omission of [Costello], its invitees, or any person performing Work directly or indirectly on behalf of [Costello], regardless of whether [APAC] is partially at fault. . . . Before starting the Work, and at any time [APAC] so requests, [Costello] shall furnish certificates satisfactory to [APAC] evidencing the required insurance. . . .
The Liberty Mutual Policy. After executing the Subcontract, Costello procured various insurance policies through an independent insurance broker, Lockton Insurance Agency, Inc., including a commercial general liability insurance policy issued by Liberty Mutual Insurance Company (the "Liberty Mutual Policy"). The Liberty Mutual Policy provided primary coverage up to a limit of $1 million per each "occurrence."
The Liberty Mutual Policy also contained an endorsement entitled "ADDITIONAL INSURED -- OWNERS, LESSEES OR CONTRACTORS," which modified the definition of "Who is an Insured" under the policy (the "Additional Insured Endorsement"). The Additional Insured Endorsement provided in relevant part:
SCHEDULE
Name of Person or Organization:
Any Person or Organization with whom you have a written contract that requires them to be named as additional insured.
WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule, or, if no person or organization is shown in the Schedule, then any person or organization to whom you are obligated by a written agreement to procure additional insur[ance] coverage, provided that:
(a) the "bodily injury", "property damage", "personal injury" or ["]advertising injury" giving rise to liability occurs subsequent to the execution of the agreement; and
(b) the written agreement is in effect at the time of the "bodily injury", "property damage", "personal injury" or "advertising injury" for which coverage is sought.
That person or organization shall be referred to as the "Additional Insured."
. . .
The insurance provided by this endorsement applies only to coverages and limits of insurance required by written agreement, but in no event exceeds either the scope of coverage or the limits of insurance provided by this policy.(fn1)
The Excess Policy. In addition to the Liberty Mutual Policy, Costello had Lockton procure an excess liability insurance policy issued by ICSOP (the "Excess Policy"). The Excess Policy provided an additional $10 million in coverage per each "occurrence," over and above the coverage provided in the underlying insurance policies issued to Costello, including the Liberty Mutual Policy. The named insured in the Excess Policy was Costello, and the Excess Policy was silent as to coverage for additional insureds. Instead, the Excess Policy contained a "following form" provision,(fn2) which stated: "Except for the terms, definitions, conditions and exclusions of this policy, the coverage provided by this policy shall follow the terms, definitions, conditions and exclusions of the [Liberty Mutual Policy]." In light of this provision, the definition of additional insured contained in the Additional Insured Endorsement of the Liberty Mutual Policy was incorporated into and made part of the Excess Policy. See generally Coleman Co. v. Cal. Union Ins. Co., 960 F2d 1529, 1533-1534 (10th Cir. 1992); Home Ins. Co. v. American Home Products Corp., 902 F2d 1111, 1113 (2d Cir. 1990).
The Graves Action and Settlement. In 2003, three people were seriously injured while driving through the construction zone where Costello was performing its work under the Subcontract. They filed suit against a number of defendants, including APAC and Costello (the "Graves Action"). As a result, APAC demanded that Costello indemnify and defend APAC from any and all costs incurred in the Graves Action. Liberty Mutual acknowledged that APAC was an additional insured under the Liberty Mutual Policy and agreed to undertake APAC's defense subject to a reservation of rights. ICSOP, in contrast, failed to acknowledge APAC as an additional insured under the Excess Policy and did not assist in the defense. Ultimately, APAC settled the Graves Action, but without any contribution from ICSOP to the settlement.
The Present Lawsuit. After ICSOP failed to contribute to the settlement in the Graves Action, APAC brought the present suit against ICSOP, Lockton, Costello, and Costello Southeast, Inc. APAC alleged that it was an additional insured under the Excess Policy entitled to $10 million in coverage. Among other things, APAC prayed for damages as a result of ICSOP's alleged failure to settle the Graves Action within the policy limits of the Excess Policy and also alleged bad faith for ICSOP's failure to defend APAC.
The trial court appointed a special master to the case. APAC, Lockton, and ICSOP each moved for summary judgment on the limited issue of whether APAC was an additional insured under the Excess Policy. APAC and Lockton contended that APAC was an additional insured under the Excess Policy; ICSOP asserted that APAC was not.
After receiving extensive briefing and hearing oral argument, the special master entered proposed findings of fact and conclusions of law. The special master recommended that the trial court rule that APAC was an additional insured under the Excess Policy based on the language of the Subcontract, the language of the Additional Insured Endorsement that was incorporated into the Excess Policy, and the applicable rules of insurance contract construction. The trial court adopted the special master's recommendations.
On appeal, ICSOP contends that the trial court erred in concluding that APAC was an additional insured under the Excess Policy. In particular, ICSOP maintains that the Additional Insured Endorsement, incorporated into the Excess Policy, extended additional insured coverage to a non-insured "only to coverages and limits of insurance required by written agreement." Consequently, ICSOP maintains that whether APAC was an additional insured under the Excess Policy turned on what "coverages" and "limits of insurance" Costello was required to procure under Paragraph 5 of the Subcontract. Because the Subcontract did not require Costello to procure a general liability policy with limits in excess of $1 million, ICSOP asserts that the Excess Policy did not provide additional insured coverage to APAC.
"Construction of an insurance policy is governed by the ordinary rules of contract construction, and when the terms of a written contract are clear and unambiguous, the court is to look to the contract alone to find the parties' intent." (Citation omitted.) Scottsdale Ins. Co. v. Great American Assurance Co., 271 Ga. App. 695, 696 (1) (610 SE2d 558) (2005). "However, if a provision of an insurance contract is susceptible of two or more constructions, even when the multiple constructions are all logical and reasonable, it is ambiguous, and the statutory rules of contract construction will be applied." (Citation omitted.) Pomerance v. Berkshire Life Ins. Co. of America, 288 Ga. App. 491, 493 (1) (654 SE2d 638) (2007). The proper construction of a contract, and whether the contract is ambiguous, are questions of law for the court to decide. Collier v. State Farm &c. Ins. Co., 249 Ga. App. 865, 866 (2) (549 SE2d 810) (2001). Applying these rules of interpretation to the case at hand, we discern no error by the trial court.
As an initial matter, we agree with ICSOP that additional insured coverage under the Excess Policy extends "only to coverages and limits of insurance required by written agreement." We likewise agree that Paragraph 5 of the Subcontract does not require general liability coverage in excess of $1 million, and, therefore, did not require Costello to procure the Excess Policy. But that does not end the inquiry given the unique language used by the parties in the Subcontract. Significantly, while Paragraph 5 of the Subcontract did not require Costello to procure excess insurance coverage, it did require Costello to procure additional insured coverage on an excess policy, in the event that Costello chose in its discretion, as it did here, to procure such a policy.
As previously noted, Paragraph 5 of the Subcontract provides in relevant part:
All policies, except for worker's compensation policies, shall name [APAC] as an additional insured with primary coverage (with any other third-party coverage provided for [APAC] to be deemed as excess only) and shall indemnify, defend and protect [APAC] from all claims, expenses and liabilities in any way connected with any act or omission of [Costello], its invitees, or any person performing Work directly or indirectly on behalf of [Costello], regardless of whether [APAC] is partially at fault. . . . Before starting the Work, and at any time [APAC] so requests, [Costello] shall furnish certificates satisfactory to [APAC] evidencing the required insurance.
(Emphasis supplied.) Thus, Paragraph 5 obligated Costello to name APAC as an additional insured on "all policies" it procured relating to the road rehabilitation project, excluding worker's compensation policies. And by its plain terms, "all policies" included within its expansive ambit any comprehensive general liability policies providing excess coverage that were procured by Costello.(fn3) Costello, therefore, was obligated to name APAC as an additional insured on the Excess Policy.
ICSOP contends, however, that when read in context of the sentences before and after it, the term "all policies" in Paragraph 5 of the Subcontract was limited to the specific types of policies that Costello was required to procure under the Subcontract. See Tuten v. City of Brunswick, 262 Ga. 399, 401 (2) (b), n. 1 (418 SE2d 367) (1992) ("Words, like people, are judged by the company they keep. Noscitur a sociis. The critical phrase thus must be gauged by the words surrounding it.") (citations, punctuation, and emphasis omitted). Consequently, ICSOP maintains that because Paragraph 5 did not require Costello to procure comprehensive general liability insurance in excess of $1 million of coverage, the Excess Policy was not included within the meaning of "all policies" for which additional insured coverage had to be obtained.
We are unpersuaded. It is a cardinal rule of construction that a contract should be construed in a manner that gives effect to all of the contractual terms. Pomerance, 288 Ga. App. at 494 (1). Following the "all policies" language, the parties go on to refer specifically in Paragraph 5 of the Subcontract to "required insurance" in setting forth other duties placed upon Costello relating to insurance procurement. Thus, if the parties wanted to limit additional insured coverage to policies specifically required under the Subcontract, they clearly knew how to do so. Put another way, the parties would not have used two different terms in short sequence within the same paragraph to mean the exact same thing. In order to give effect to all of the contractual terms, "all policies" thus must be construed as greater in scope than "required insurance" under the Subcontract. See Pomerance, 288 Ga. App. at 494-495 (1) (rejecting interpretation of the word "substantial" that would render it interchangeable with the word "material" used in the same policy); Tyson v. McPhail Properties, 223 Ga. App. 683, 689 (6) (478 SE2d 467) (1996) (concluding that the contract "would not have used two different terms in two sequential paragraphs to describe the same thing").
Limiting additional insured coverage to policies required under the Subcontract, moreover, would undermine Costello's ability to ensure that it meets its contractual obligation, also set forth in Paragraph 5, to "indemnify, defend and protect [APAC] from all claims, expenses and liabilities" -- a potentially expansive obligation not limited to a particular dollar amount. (Emphasis supplied.) Since an insurance contract should be construed in a manner that harmonizes, rather than internally undermines, its various provisions, Chanin v. Tharrington, 222 Ga. App. 890 (476 SE2d 651) (1996), we decline to construe "all policies" in the narrow manner advocated by ICSOP.
ICSOP also focuses on the language in Paragraph 5 of the Subcontract requiring that APAC be named as an additional insured "with primary coverage (with any other third-party coverage provided for [APAC] to be deemed as excess only)." According to ICSOP, inclusion of a reference to "primary coverage" in the "all policies" sentence of Paragraph 5 shows that the term "all policies" cannot be construed as encompassing excess insurance policies, since such policies by definition do not provide primary coverage. Again, we disagree. When read in context, the "primary coverage" reference, which is immediately followed by the third-party coverage reference, is simply intended to require that all of the insurance policies procured by Costello naming APAC as an additional insured be exhausted before any separate, third-party policies procured by APAC are reached. Hence, the reference to "primary coverage" is not intended to draw a distinction between primary and excess policies procured by Costello.
Finally, ICSOP relies heavily on Ryder Integrated Logistics v. Bellsouth Telecommunications, 277 Ga. App. 679 (627 SE2d 358) (2006), rev'd in part on other grounds, 281 Ga. 736 (642 SE2d 695) (2007), to support its position. In that case, we relied upon the specific language of the contract between the parties to conclude that the parties did not intend to name Bellsouth as an additional insured on the excess policy procured by Ryder. Id. at 686 (4) (b). The contractual language in Ryder Integrated Logistics, however, was dramatically different from the "all policies" language used in Paragraph 5 of the Subcontract. Specifically, the contract in that case stated: "All commercial general liability policies required herein shall name [Bellsouth] as an additional insured with respect to work performed under this [contract]." (Emphasis supplied.) Id. at 681. As such, in Ryder Integrated Logistics it was clear that the parties intended to limit additional insured coverage to the specific insurance required in the parties' contract. In contrast, the parties in the present case agreed that "all policies" procured by Costello relating to the road rehabilitation project, except for worker's compensation policies, would name APAC as an additional insured. Hence, the difference in contractual language distinguishes Ryder Integrated Logistics from the present case.
For these combined reasons, we conclude that Paragraph 5 of the Subcontract did not require excess policy coverage but required additional insured coverage to be obtained for such a policy once procured by Costello, as occurred in this case. Yet, as already pointed out, the Additional Insured Endorsement, incorporated into the Excess Policy, extended additional insured coverage to a non-insured "only to coverages and limits of insurance required by written agreement." The question that must be answered, therefore, is whether the Additional Insured Endorsement extended additional insured coverage in the specific circumstance where the parties' underlying written agreement did not require excess insurance coverage, but required additional insured coverage for any excess policy that was procured. We conclude that the Additional Insured Endorsement is ambiguous as to whether coverage is provided in this unique context.
Under the applicable rules of contract construction, "[w]hen the language of an insurance contract is ambiguous and subject to more than one reasonable construction, the policy must be construed in the light most favorable to the insured, which provides him with coverage." Western Pacific Mut. Ins. Co. v. Davies, 267 Ga. App. 675, 680 (1) (601 SE2d 363) (2004). See Claussen v. Aetna Cas. &c. Co., 259 Ga. 333, 334-335 (1) (380 SE2d 686) (1989) ("[I]f an insurance contract is capable of being construed two ways, it will be construed against the insurance company and in favor of the insured."). We thus construe the Additional Insured Endorsement in the light most favorable to APAC and resolve the ambiguity in the policy language in favor of extending APAC additional insured coverage under the Excess Policy. See id.
Based on the language of Paragraph 5 of the Subcontract, the language of the Additional Insured Endorsement incorporated into the Excess Policy, and the rules of contract construction, the trial court did not err in concluding that APAC was covered as an additional insured under the Excess Policy. Accordingly, we affirm the trial court's order granting summary judgment to APAC and Costello and denying summary judgment to ICSOP on this coverage issue.
Judgment affirmed.
Smith, P.J., and Phipps, J., concur.
-----
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v.
APAC-SOUTHEAST, INC. et al.
A09A0081.
Court of Appeals of Georgia.
April 17, 2009
BERNES, Judge.
This appeal concerns the construction of an insurance contract resolved by the trial court on summary judgment. The question presented is whether the plaintiff, APAC-Southeast, Inc., is an additional insured under an excess liability insurance policy issued by one of the defendants, the Insurance Company of the State of Pennsylvania ("ICSOP"). The trial court answered the question in the affirmative. We agree and therefore affirm.
Summary judgment is appropriate if the pleadings and evidence "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." OCGA § 9-11-56 (c). On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party. Northwest Carpets v. First Nat. Bank of Chatsworth, 280 Ga. 535, 538 (1) (630 SE2d 407) (2006). "A grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. It is the grant itself that is to be reviewed for error, and not the analysis employed." (Citations omitted.) Albany Oil Mill v. Sumter Elec. Membership Corp., 212 Ga. App. 242, 243 (3) (441 SE2d 524) (1994). Mindful of these principles, we turn to the record here.
The Subcontract. APAC is a transportation construction contractor engaged in the business of road construction and paving. In 2002, APAC entered into a contract with the Georgia Department of Transportation to serve as the general contractor on a road rehabilitation project in Monroe County (the "Contract"). Later that year, APAC entered into a subcontract with Costello Industries, Inc., under which Costello agreed to perform part of the road rehabilitation work (the "Subcontract"). Pursuant to Paragraph 5 of the Subcontract, Costello was required to procure insurance on behalf of APAC:
5. INSURANCE: [Costello] shall, and shall cause each of its subcontractors to, maintain (i) worker's compensation and employer's liability insurance to fully protect against loss from personal injury, including death, to any of their employees, (ii) comprehensive automobile liability, general liability (including blasting, collapse and underground, product liability and completed operations coverages,) contractual liability, owners and contractor's liability, builders risk, and property damage insurance, (iii) and any and all other insurance required by the Contract. All such insurance shall be written by insurers acceptable to [APAC], having minimum coverage of $1,000,000 combined single limit, on an "occurrence" basis and not on a "claims made" basis. All policies, except for worker's compensation policies, shall name [APAC] as an additional insured with primary coverage (with any other third-party coverage provided for [APAC] to be deemed as excess only) and shall indemnify, defend and protect [APAC] from all claims, expenses and liabilities in any way connected with any act or omission of [Costello], its invitees, or any person performing Work directly or indirectly on behalf of [Costello], regardless of whether [APAC] is partially at fault. . . . Before starting the Work, and at any time [APAC] so requests, [Costello] shall furnish certificates satisfactory to [APAC] evidencing the required insurance. . . .
The Liberty Mutual Policy. After executing the Subcontract, Costello procured various insurance policies through an independent insurance broker, Lockton Insurance Agency, Inc., including a commercial general liability insurance policy issued by Liberty Mutual Insurance Company (the "Liberty Mutual Policy"). The Liberty Mutual Policy provided primary coverage up to a limit of $1 million per each "occurrence."
The Liberty Mutual Policy also contained an endorsement entitled "ADDITIONAL INSURED -- OWNERS, LESSEES OR CONTRACTORS," which modified the definition of "Who is an Insured" under the policy (the "Additional Insured Endorsement"). The Additional Insured Endorsement provided in relevant part:
SCHEDULE
Name of Person or Organization:
Any Person or Organization with whom you have a written contract that requires them to be named as additional insured.
WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule, or, if no person or organization is shown in the Schedule, then any person or organization to whom you are obligated by a written agreement to procure additional insur[ance] coverage, provided that:
(a) the "bodily injury", "property damage", "personal injury" or ["]advertising injury" giving rise to liability occurs subsequent to the execution of the agreement; and
(b) the written agreement is in effect at the time of the "bodily injury", "property damage", "personal injury" or "advertising injury" for which coverage is sought.
That person or organization shall be referred to as the "Additional Insured."
. . .
The insurance provided by this endorsement applies only to coverages and limits of insurance required by written agreement, but in no event exceeds either the scope of coverage or the limits of insurance provided by this policy.(fn1)
The Excess Policy. In addition to the Liberty Mutual Policy, Costello had Lockton procure an excess liability insurance policy issued by ICSOP (the "Excess Policy"). The Excess Policy provided an additional $10 million in coverage per each "occurrence," over and above the coverage provided in the underlying insurance policies issued to Costello, including the Liberty Mutual Policy. The named insured in the Excess Policy was Costello, and the Excess Policy was silent as to coverage for additional insureds. Instead, the Excess Policy contained a "following form" provision,(fn2) which stated: "Except for the terms, definitions, conditions and exclusions of this policy, the coverage provided by this policy shall follow the terms, definitions, conditions and exclusions of the [Liberty Mutual Policy]." In light of this provision, the definition of additional insured contained in the Additional Insured Endorsement of the Liberty Mutual Policy was incorporated into and made part of the Excess Policy. See generally Coleman Co. v. Cal. Union Ins. Co., 960 F2d 1529, 1533-1534 (10th Cir. 1992); Home Ins. Co. v. American Home Products Corp., 902 F2d 1111, 1113 (2d Cir. 1990).
The Graves Action and Settlement. In 2003, three people were seriously injured while driving through the construction zone where Costello was performing its work under the Subcontract. They filed suit against a number of defendants, including APAC and Costello (the "Graves Action"). As a result, APAC demanded that Costello indemnify and defend APAC from any and all costs incurred in the Graves Action. Liberty Mutual acknowledged that APAC was an additional insured under the Liberty Mutual Policy and agreed to undertake APAC's defense subject to a reservation of rights. ICSOP, in contrast, failed to acknowledge APAC as an additional insured under the Excess Policy and did not assist in the defense. Ultimately, APAC settled the Graves Action, but without any contribution from ICSOP to the settlement.
The Present Lawsuit. After ICSOP failed to contribute to the settlement in the Graves Action, APAC brought the present suit against ICSOP, Lockton, Costello, and Costello Southeast, Inc. APAC alleged that it was an additional insured under the Excess Policy entitled to $10 million in coverage. Among other things, APAC prayed for damages as a result of ICSOP's alleged failure to settle the Graves Action within the policy limits of the Excess Policy and also alleged bad faith for ICSOP's failure to defend APAC.
The trial court appointed a special master to the case. APAC, Lockton, and ICSOP each moved for summary judgment on the limited issue of whether APAC was an additional insured under the Excess Policy. APAC and Lockton contended that APAC was an additional insured under the Excess Policy; ICSOP asserted that APAC was not.
After receiving extensive briefing and hearing oral argument, the special master entered proposed findings of fact and conclusions of law. The special master recommended that the trial court rule that APAC was an additional insured under the Excess Policy based on the language of the Subcontract, the language of the Additional Insured Endorsement that was incorporated into the Excess Policy, and the applicable rules of insurance contract construction. The trial court adopted the special master's recommendations.
On appeal, ICSOP contends that the trial court erred in concluding that APAC was an additional insured under the Excess Policy. In particular, ICSOP maintains that the Additional Insured Endorsement, incorporated into the Excess Policy, extended additional insured coverage to a non-insured "only to coverages and limits of insurance required by written agreement." Consequently, ICSOP maintains that whether APAC was an additional insured under the Excess Policy turned on what "coverages" and "limits of insurance" Costello was required to procure under Paragraph 5 of the Subcontract. Because the Subcontract did not require Costello to procure a general liability policy with limits in excess of $1 million, ICSOP asserts that the Excess Policy did not provide additional insured coverage to APAC.
"Construction of an insurance policy is governed by the ordinary rules of contract construction, and when the terms of a written contract are clear and unambiguous, the court is to look to the contract alone to find the parties' intent." (Citation omitted.) Scottsdale Ins. Co. v. Great American Assurance Co., 271 Ga. App. 695, 696 (1) (610 SE2d 558) (2005). "However, if a provision of an insurance contract is susceptible of two or more constructions, even when the multiple constructions are all logical and reasonable, it is ambiguous, and the statutory rules of contract construction will be applied." (Citation omitted.) Pomerance v. Berkshire Life Ins. Co. of America, 288 Ga. App. 491, 493 (1) (654 SE2d 638) (2007). The proper construction of a contract, and whether the contract is ambiguous, are questions of law for the court to decide. Collier v. State Farm &c. Ins. Co., 249 Ga. App. 865, 866 (2) (549 SE2d 810) (2001). Applying these rules of interpretation to the case at hand, we discern no error by the trial court.
As an initial matter, we agree with ICSOP that additional insured coverage under the Excess Policy extends "only to coverages and limits of insurance required by written agreement." We likewise agree that Paragraph 5 of the Subcontract does not require general liability coverage in excess of $1 million, and, therefore, did not require Costello to procure the Excess Policy. But that does not end the inquiry given the unique language used by the parties in the Subcontract. Significantly, while Paragraph 5 of the Subcontract did not require Costello to procure excess insurance coverage, it did require Costello to procure additional insured coverage on an excess policy, in the event that Costello chose in its discretion, as it did here, to procure such a policy.
As previously noted, Paragraph 5 of the Subcontract provides in relevant part:
All policies, except for worker's compensation policies, shall name [APAC] as an additional insured with primary coverage (with any other third-party coverage provided for [APAC] to be deemed as excess only) and shall indemnify, defend and protect [APAC] from all claims, expenses and liabilities in any way connected with any act or omission of [Costello], its invitees, or any person performing Work directly or indirectly on behalf of [Costello], regardless of whether [APAC] is partially at fault. . . . Before starting the Work, and at any time [APAC] so requests, [Costello] shall furnish certificates satisfactory to [APAC] evidencing the required insurance.
(Emphasis supplied.) Thus, Paragraph 5 obligated Costello to name APAC as an additional insured on "all policies" it procured relating to the road rehabilitation project, excluding worker's compensation policies. And by its plain terms, "all policies" included within its expansive ambit any comprehensive general liability policies providing excess coverage that were procured by Costello.(fn3) Costello, therefore, was obligated to name APAC as an additional insured on the Excess Policy.
ICSOP contends, however, that when read in context of the sentences before and after it, the term "all policies" in Paragraph 5 of the Subcontract was limited to the specific types of policies that Costello was required to procure under the Subcontract. See Tuten v. City of Brunswick, 262 Ga. 399, 401 (2) (b), n. 1 (418 SE2d 367) (1992) ("Words, like people, are judged by the company they keep. Noscitur a sociis. The critical phrase thus must be gauged by the words surrounding it.") (citations, punctuation, and emphasis omitted). Consequently, ICSOP maintains that because Paragraph 5 did not require Costello to procure comprehensive general liability insurance in excess of $1 million of coverage, the Excess Policy was not included within the meaning of "all policies" for which additional insured coverage had to be obtained.
We are unpersuaded. It is a cardinal rule of construction that a contract should be construed in a manner that gives effect to all of the contractual terms. Pomerance, 288 Ga. App. at 494 (1). Following the "all policies" language, the parties go on to refer specifically in Paragraph 5 of the Subcontract to "required insurance" in setting forth other duties placed upon Costello relating to insurance procurement. Thus, if the parties wanted to limit additional insured coverage to policies specifically required under the Subcontract, they clearly knew how to do so. Put another way, the parties would not have used two different terms in short sequence within the same paragraph to mean the exact same thing. In order to give effect to all of the contractual terms, "all policies" thus must be construed as greater in scope than "required insurance" under the Subcontract. See Pomerance, 288 Ga. App. at 494-495 (1) (rejecting interpretation of the word "substantial" that would render it interchangeable with the word "material" used in the same policy); Tyson v. McPhail Properties, 223 Ga. App. 683, 689 (6) (478 SE2d 467) (1996) (concluding that the contract "would not have used two different terms in two sequential paragraphs to describe the same thing").
Limiting additional insured coverage to policies required under the Subcontract, moreover, would undermine Costello's ability to ensure that it meets its contractual obligation, also set forth in Paragraph 5, to "indemnify, defend and protect [APAC] from all claims, expenses and liabilities" -- a potentially expansive obligation not limited to a particular dollar amount. (Emphasis supplied.) Since an insurance contract should be construed in a manner that harmonizes, rather than internally undermines, its various provisions, Chanin v. Tharrington, 222 Ga. App. 890 (476 SE2d 651) (1996), we decline to construe "all policies" in the narrow manner advocated by ICSOP.
ICSOP also focuses on the language in Paragraph 5 of the Subcontract requiring that APAC be named as an additional insured "with primary coverage (with any other third-party coverage provided for [APAC] to be deemed as excess only)." According to ICSOP, inclusion of a reference to "primary coverage" in the "all policies" sentence of Paragraph 5 shows that the term "all policies" cannot be construed as encompassing excess insurance policies, since such policies by definition do not provide primary coverage. Again, we disagree. When read in context, the "primary coverage" reference, which is immediately followed by the third-party coverage reference, is simply intended to require that all of the insurance policies procured by Costello naming APAC as an additional insured be exhausted before any separate, third-party policies procured by APAC are reached. Hence, the reference to "primary coverage" is not intended to draw a distinction between primary and excess policies procured by Costello.
Finally, ICSOP relies heavily on Ryder Integrated Logistics v. Bellsouth Telecommunications, 277 Ga. App. 679 (627 SE2d 358) (2006), rev'd in part on other grounds, 281 Ga. 736 (642 SE2d 695) (2007), to support its position. In that case, we relied upon the specific language of the contract between the parties to conclude that the parties did not intend to name Bellsouth as an additional insured on the excess policy procured by Ryder. Id. at 686 (4) (b). The contractual language in Ryder Integrated Logistics, however, was dramatically different from the "all policies" language used in Paragraph 5 of the Subcontract. Specifically, the contract in that case stated: "All commercial general liability policies required herein shall name [Bellsouth] as an additional insured with respect to work performed under this [contract]." (Emphasis supplied.) Id. at 681. As such, in Ryder Integrated Logistics it was clear that the parties intended to limit additional insured coverage to the specific insurance required in the parties' contract. In contrast, the parties in the present case agreed that "all policies" procured by Costello relating to the road rehabilitation project, except for worker's compensation policies, would name APAC as an additional insured. Hence, the difference in contractual language distinguishes Ryder Integrated Logistics from the present case.
For these combined reasons, we conclude that Paragraph 5 of the Subcontract did not require excess policy coverage but required additional insured coverage to be obtained for such a policy once procured by Costello, as occurred in this case. Yet, as already pointed out, the Additional Insured Endorsement, incorporated into the Excess Policy, extended additional insured coverage to a non-insured "only to coverages and limits of insurance required by written agreement." The question that must be answered, therefore, is whether the Additional Insured Endorsement extended additional insured coverage in the specific circumstance where the parties' underlying written agreement did not require excess insurance coverage, but required additional insured coverage for any excess policy that was procured. We conclude that the Additional Insured Endorsement is ambiguous as to whether coverage is provided in this unique context.
Under the applicable rules of contract construction, "[w]hen the language of an insurance contract is ambiguous and subject to more than one reasonable construction, the policy must be construed in the light most favorable to the insured, which provides him with coverage." Western Pacific Mut. Ins. Co. v. Davies, 267 Ga. App. 675, 680 (1) (601 SE2d 363) (2004). See Claussen v. Aetna Cas. &c. Co., 259 Ga. 333, 334-335 (1) (380 SE2d 686) (1989) ("[I]f an insurance contract is capable of being construed two ways, it will be construed against the insurance company and in favor of the insured."). We thus construe the Additional Insured Endorsement in the light most favorable to APAC and resolve the ambiguity in the policy language in favor of extending APAC additional insured coverage under the Excess Policy. See id.
Based on the language of Paragraph 5 of the Subcontract, the language of the Additional Insured Endorsement incorporated into the Excess Policy, and the rules of contract construction, the trial court did not err in concluding that APAC was covered as an additional insured under the Excess Policy. Accordingly, we affirm the trial court's order granting summary judgment to APAC and Costello and denying summary judgment to ICSOP on this coverage issue.
Judgment affirmed.
Smith, P.J., and Phipps, J., concur.
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Eisenhower Medical Malpractice Lawyer Fort Gordon Georgia - HAMILTON v. SHUMPERT
HAMILTON et al.
v.
SHUMPERT et al.
A09A0223.
Court of Appeals of Georgia
July 15, 2009
PHIPPS, Judge.
Within days of being seen by a hospital's emergency room physician and her own primary care physician for chest pain and related symptoms, Myra Hamilton suffered heart failure, loss of her kidneys, and other severe complications. She and her husband filed a medical malpractice suit. They named as defendants: Paul K. Shumpert, M.D., the emergency room doctor who treated her; NW Georgia Emergency Medical Associates, P.C., the company for which he worked; Redmond Park Hospital, Inc. d/b/a Redmond Regional Medical Center, the hospital where she was seen by Shumpert; Billy G. Chacko, M.D., Hamilton's primary care physician and internist; Billy G. Chacko, M.D., P.C., Chacko's professional corporation; and Harbin Clinic, LLC, where Chacko worked. The Hamiltons dismissed their claims against the hospital; the case proceeded to trial; and the jury found for the defendants.
The Hamiltons appeal the judgment entered upon the jury verdicts. They contend that the trial court erred by denying their motion to impose sanctions against defense counsel for certain conduct during discovery, by curtailing their use of an exhibit during cross-examination of a defense medical expert, and by failing to give a curative instruction and rebuke defense counsel regarding improper remarks in closing argument. Because the Hamiltons have shown no reversible error, we affirm.
On April 5, 2003, Hamilton experienced fatigue, shortness of breath, chest pain, and heart palpitations. She called the Harbin Clinic to speak with Chacko. The office was closed that Saturday, but one of Chacko's partners at the Harbin Clinic returned her call. Hamilton heeded that doctor's advice to report to a hospital's emergency department.
At Redmond Regional Medical Center, Hamilton was seen by Shumpert. He noted her high blood pressure, ordered an EKG test, ordered lab work, and ordered and reviewed an x-ray of her chest. He diagnosed Hamilton with bronchitis and possibly pneumonia, prescribed antibiotics, then discharged her with instruction for her to follow-up with her primary care physician in two days.
On Monday, Hamilton felt worse, despite taking the prescribed medication. She went to see Chacko that day, reporting her ongoing symptoms and recent visit to the emergency department. Chacko noted that Hamilton's blood pressure was elevated. He ordered tests on Hamilton's blood and urine samples. Chacko also reviewed the results of Hamilton's blood count and chemistry reports, as well as the EKG that had been performed at Redmond two days earlier. He did not review the chest x-ray because he did not know about it. Chacko scheduled Hamilton to see a pulmonologist that Thursday.
But by Tuesday morning, Hamilton's ability to breathe had worsened. She called Chacko's office and was advised to report to an emergency department. On the way there by ambulance, Hamilton suffered a respiratory arrest. She remained hospitalized through late May for numerous severe complications, including congestive heart failure and the loss of both kidneys.
Meanwhile, on April 10, Chacko consulted with a rheumatologist at the Harbin Clinic who had seen Hamilton the previous October and again in January 2003. During those visits with Hamilton, the rheumatologist had considered scleroderma as a possible diagnosis of her condition. After a kidney biopsy was obtained during the latter part of April, Hamilton was diagnosed with scleroderma renal crisis.
In their lawsuit, the Hamiltons alleged that Shumpert and Chacko had breached the standard of care by failing to adequately perform and evaluate tests between April 5 and April 7 and thus failing to give Hamilton available medications that would have prevented the heart failure and protected her kidneys from damage. They presented evidence that the tests performed at the emergency department revealed elevated blood pressure, an abnormal EKG, an abnormal chest x-ray, and abnormal renal function.
The defendants denied liability on the ground that, under the circumstances, the standard of care did not require the defendant doctors to diagnose and thus treat, within the April 5-7 time frame, Hamilton's underlying condition of scleroderma renal crisis. A defense medical expert, who was an internist with a speciality in rheumatology, described scleroderma as a connective tissue disease with a "hallmark" manifestation of the presence of tight, hard skin. In some cases, scleroderma affects internal body parts, such as the lungs, heart and kidneys. In very rare cases, individuals suffer the internal damage caused by scleroderma without also having the characteristic skin changes. These persons have what is called scleroderma sine scleroderma. The expert testified that Hamilton suffered from this condition. According to the expert, "Scleroderma renal crisis is one of the few ultra-emergencies in scleroderma. . . . [I]t's an acute onset of very severe high blood pressure that can cause renal failure and kidney failure and death." She further testified that this condition is not predictable.
1. The Hamiltons contend that the trial court erred by denying their motion pursuant to OCGA § 9-11-37 that sought the imposition of sanctions based upon ex parte communications in 2006 between Shumpert's attorney and a cardiologist. This doctor had treated Hamilton in April 2003, during his employment with the Harbin Clinic, which ended in August 2003. The Hamiltons assert that the communications violated the Health Insurance Portability and Accountability Act of 1996 (HIPAA).(fn1) "A trial court has broad discretion to control discovery, including the imposition of sanctions, and this Court will not reverse the trial court's ruling on such matters absent the showing of a clear abuse of discretion."(fn2)
The record shows that, pursuant to OCGA § 9-11-9.2, Hamilton signed and filed with the complaint in 2005 a medical authorization form wherein she granted the defendants' attorneys the "right to discuss the care and treatment of Plaintiff, Myra Lynn Hamilton, with all of [her] physicians." The Hamiltons argue that they should not be bound by this authorization in light of Moreland v. Austin.(fn3)
In that case, the Supreme Court of Georgia clarified that HIPAA applies to ex parte communications between defense counsel and heathcare providers, that HIPAA is more stringent that Georgia law, and that it therefore "preempts Georgia law with regard to ex parte communications between defense counsel and plaintiff's prior treating physicians because HIPAA affords patients more control over their medical records when it comes to informal contacts between litigants and physicians."(fn4) The Supreme Court instructed, "Thus, in order for defense counsel to informally interview plaintiff's treating physicians, they must first obtain a valid authorization, or court order or otherwise comply with the provisions of 45 CFR § 164.512 (e)."(fn5)
Despite the relevant HIPAA protections, which were enacted in 2003,(fn6) Hamilton provided an authorization form that did not in any way restrict discussions between defense counsel and Hamilton's former treating physicians.(fn7) Moreover, Shumpert's attorney contacted Hamilton's prior treating cardiologist at a time when arguably the applicability of HIPAA to ex parte communications was uncertain. Under these circumstances, the trial court did not clearly abuse its discretion in denying the Hamiltons' motion to impose sanctions against defense counsel.(fn8)
2. The Hamiltons contend that the trial court erred by curtailing their use of a note dictated as part of Hamilton's medical records by the rheumatologist at the Harbin Clinic who had seen Hamilton in October 2002 and January 2003. According to the Hamiltons, the note showed that during the January visit, the rheumatologist had considered that Hamilton may have had some form of scleroderma. They argue that the note was therefore proper impeachment and rebuttal evidence because it demonstrated an "important contradiction between what the treating doctors actually thought and recorded in the medical records compared to what Defendants' one rheumatology expert `assumed' they thought."
During cross-examination, the defense rheumatology expert stated that she did not "think [the treating rheumatologist] was considering diffused scleroderma." This response led to the Hamiltons putting the note at issue on display for the jury. The defense objected, arguing that the Hamiltons were attempting to use the note in an impermissible manner and pointing out that the note had been written on April 10 by the treating rheumatologist after reflecting upon his visit with Hamilton the previous January. At a bench conference, Hamilton's counsel explained that the treating rheumatologist had included in his note that, during that previous January, he "felt that she had a probable evolving case of Crest syndrome or diffuse scleroderma." After hearing additional argument, the court ordered that the note be taken off display, remarking that the Hamiltons had already called the treating rheumatologist for cross-examination in their case in chief.
The record shows that, during their examination of the treating rheumatologist, the Hamiltons asked the doctor about his October and January visits with Hamilton. He testified that during his October 2002 evaluation of her, he considered "evolving scleroderma" as a possibility, and he identified a trial exhibit as his handwritten note showing so. The rheumatologist also identified another exhibit as his dictated note concerning the same matter. In that note, the doctor recorded, "There has been a question of evolving connective tissue disease, specifically limited scleroderma." The rheumatologist was further asked whether he had mentioned any other possible type of scleroderma in the note. He responded, "Well in my assessment I wrote down, certainly lupus, mixed connective tissue disease, scleroderma and limited scleroderma are all in the differential diagnosis. So I mentioned diffuse scleroderma." The rheumatologist testified further that, when Hamilton returned in January 2003, he recorded in a note his assessment of "probable evolving Crest syndrome or scleroderma." And he identified a trial exhibit as this note. Upon further questioning about whether he had referenced in his October or January notes "sine scleroderma," he answered no. He explained,
There wouldn't be any references for sine scleroderma because it requires basically a pathological diagnosis, the piece of an organ. And . . . clinically she did not have scleroderma and basically sine scleroderma means scleroderma without scleroderma. So she didn't have skin changes and I didn't have a piece of an organ that would permit me to make such a diagnosis.
"Control of the nature and scope of cross-examination of a witness is a matter within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion."(fn9) Because the record shows that the Hamiltons were afforded ample opportunity to cross-examine the rheumatologist regarding his impressions at the time of his visits with Hamilton and because the information cited in the April 10 note was cumulative of what the rheumatologist had already testified and of his other notes shown to the jury, we find no reversible error in the trial court's curtailment of the use of the April 10 note.(fn10)
3. The Hamiltons contend that the trial court erred by refusing to give a curative instruction or rebuke defense counsel in the jury's presence in response to impermissible remarks made by one of the defense attorneys during closing argument. The Hamiltons complain of the following remarks: "I know that [the plaintiffs' lawyer] is going to probably ask you for an awful lot of money. A lot of lawyers ask for a lot of money and hope to get a percent of it." Without objection, the attorney went on to complete the closing argument.
At the conclusion of that particular closing argument, the court excused the jury out of the courtroom for a 10-minute break. Plaintiffs' counsel asked the trial judge, "[W]hat are we going to do about [the defense counsel's] comment that we will get a percentage?" The lawyer who had just given the closing argument denied having made or implied such a reference. The court agreed that the cited remarks could not reasonably be interpreted as commenting on a contingency fee recovery. The court therefore denied the plaintiffs' request for a curative instruction, explaining that it found nothing improper about what was said and that an instruction to the jury would needlessly highlight the remarks. The trial proceeded with the plaintiffs' final closing argument.
Arguing that the trial court erred because the remarks impermissibly put a potential contingency fee in issue, the Hamiltons cite OCGA § 9-10-185:
Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds.
Counsel is permitted wide latitude in closing argument, and defining the bounds of such argument is within the trial court's discretion.(fn11) However, the law forbids injecting into a case, by way of closing argument, facts not in the record and calculated to prejudice the opposing party.(fn12) Thus,
a jury may not generally consider plaintiff's attorney fees when awarding damages. . . . The source of payment of attorney fees is irrelevant to the issue of damages. Evidence of it would be inadmissible, and argument on it is doubly wrong. It is not a subject of legitimate concern within the scope of [the jury's deliberations].(fn13)
Accordingly, this court has consistently condemned such argument as improper.(fn14) In the instant case, any contingency fee agreement had no relevance to any issue of liability or damages in the case.
Even assuming that defense counsel's remarks exceeded the permissible bounds of propriety,(fn15) there was no timely objection. The time to object is "when the impropriety occurs at trial."(fn16) In Butler v. State,(fn17) where the defendant did not object to the prosecutor's comment "at the time it was made," but waited until the end of the closing argument to move for a mistrial,(fn18) the Supreme Court of Georgia held that the objection and motion for mistrial were untimely.(fn19) Soon thereafter, the Supreme Court explained in Mullins v. Thompson(fn20) that in Butler it had "rejected the notion that a motion for mistrial based upon an improper closing argument can be made after closing argument, and held, to the contrary, that such a motion must be made at the time the improper argument is uttered."(fn21) Since those cases, both the Supreme Court and this court have consistently held that motions for mistrial and objections based upon improper closing argument are untimely when first made after the closing argument has concluded.(fn22)
The Hamiltons did not interpose an objection at the time the remarks were made; they waited until the end of the closing argument. Although their objection was apparently moments after the cited remarks and even before the trial had advanced to either another phase or another (here, the plaintiffs' final) closing argument,(fn23) under Butler and its progeny, the Hamiltons' objection was untimely.
"When, as here, no timely objection is interposed, the test for reversible error is whether the improper argument in reasonable probability changed the result of the trial."(fn24) The Hamiltons have not demonstrated, and our review of the record does not convince us, that there is such reasonable probability here.
Judgment affirmed.
Smith, P.J., and Bernes, J., concur.
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We offer a free initial consultation to all prospective clients.
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v.
SHUMPERT et al.
A09A0223.
Court of Appeals of Georgia
July 15, 2009
PHIPPS, Judge.
Within days of being seen by a hospital's emergency room physician and her own primary care physician for chest pain and related symptoms, Myra Hamilton suffered heart failure, loss of her kidneys, and other severe complications. She and her husband filed a medical malpractice suit. They named as defendants: Paul K. Shumpert, M.D., the emergency room doctor who treated her; NW Georgia Emergency Medical Associates, P.C., the company for which he worked; Redmond Park Hospital, Inc. d/b/a Redmond Regional Medical Center, the hospital where she was seen by Shumpert; Billy G. Chacko, M.D., Hamilton's primary care physician and internist; Billy G. Chacko, M.D., P.C., Chacko's professional corporation; and Harbin Clinic, LLC, where Chacko worked. The Hamiltons dismissed their claims against the hospital; the case proceeded to trial; and the jury found for the defendants.
The Hamiltons appeal the judgment entered upon the jury verdicts. They contend that the trial court erred by denying their motion to impose sanctions against defense counsel for certain conduct during discovery, by curtailing their use of an exhibit during cross-examination of a defense medical expert, and by failing to give a curative instruction and rebuke defense counsel regarding improper remarks in closing argument. Because the Hamiltons have shown no reversible error, we affirm.
On April 5, 2003, Hamilton experienced fatigue, shortness of breath, chest pain, and heart palpitations. She called the Harbin Clinic to speak with Chacko. The office was closed that Saturday, but one of Chacko's partners at the Harbin Clinic returned her call. Hamilton heeded that doctor's advice to report to a hospital's emergency department.
At Redmond Regional Medical Center, Hamilton was seen by Shumpert. He noted her high blood pressure, ordered an EKG test, ordered lab work, and ordered and reviewed an x-ray of her chest. He diagnosed Hamilton with bronchitis and possibly pneumonia, prescribed antibiotics, then discharged her with instruction for her to follow-up with her primary care physician in two days.
On Monday, Hamilton felt worse, despite taking the prescribed medication. She went to see Chacko that day, reporting her ongoing symptoms and recent visit to the emergency department. Chacko noted that Hamilton's blood pressure was elevated. He ordered tests on Hamilton's blood and urine samples. Chacko also reviewed the results of Hamilton's blood count and chemistry reports, as well as the EKG that had been performed at Redmond two days earlier. He did not review the chest x-ray because he did not know about it. Chacko scheduled Hamilton to see a pulmonologist that Thursday.
But by Tuesday morning, Hamilton's ability to breathe had worsened. She called Chacko's office and was advised to report to an emergency department. On the way there by ambulance, Hamilton suffered a respiratory arrest. She remained hospitalized through late May for numerous severe complications, including congestive heart failure and the loss of both kidneys.
Meanwhile, on April 10, Chacko consulted with a rheumatologist at the Harbin Clinic who had seen Hamilton the previous October and again in January 2003. During those visits with Hamilton, the rheumatologist had considered scleroderma as a possible diagnosis of her condition. After a kidney biopsy was obtained during the latter part of April, Hamilton was diagnosed with scleroderma renal crisis.
In their lawsuit, the Hamiltons alleged that Shumpert and Chacko had breached the standard of care by failing to adequately perform and evaluate tests between April 5 and April 7 and thus failing to give Hamilton available medications that would have prevented the heart failure and protected her kidneys from damage. They presented evidence that the tests performed at the emergency department revealed elevated blood pressure, an abnormal EKG, an abnormal chest x-ray, and abnormal renal function.
The defendants denied liability on the ground that, under the circumstances, the standard of care did not require the defendant doctors to diagnose and thus treat, within the April 5-7 time frame, Hamilton's underlying condition of scleroderma renal crisis. A defense medical expert, who was an internist with a speciality in rheumatology, described scleroderma as a connective tissue disease with a "hallmark" manifestation of the presence of tight, hard skin. In some cases, scleroderma affects internal body parts, such as the lungs, heart and kidneys. In very rare cases, individuals suffer the internal damage caused by scleroderma without also having the characteristic skin changes. These persons have what is called scleroderma sine scleroderma. The expert testified that Hamilton suffered from this condition. According to the expert, "Scleroderma renal crisis is one of the few ultra-emergencies in scleroderma. . . . [I]t's an acute onset of very severe high blood pressure that can cause renal failure and kidney failure and death." She further testified that this condition is not predictable.
1. The Hamiltons contend that the trial court erred by denying their motion pursuant to OCGA § 9-11-37 that sought the imposition of sanctions based upon ex parte communications in 2006 between Shumpert's attorney and a cardiologist. This doctor had treated Hamilton in April 2003, during his employment with the Harbin Clinic, which ended in August 2003. The Hamiltons assert that the communications violated the Health Insurance Portability and Accountability Act of 1996 (HIPAA).(fn1) "A trial court has broad discretion to control discovery, including the imposition of sanctions, and this Court will not reverse the trial court's ruling on such matters absent the showing of a clear abuse of discretion."(fn2)
The record shows that, pursuant to OCGA § 9-11-9.2, Hamilton signed and filed with the complaint in 2005 a medical authorization form wherein she granted the defendants' attorneys the "right to discuss the care and treatment of Plaintiff, Myra Lynn Hamilton, with all of [her] physicians." The Hamiltons argue that they should not be bound by this authorization in light of Moreland v. Austin.(fn3)
In that case, the Supreme Court of Georgia clarified that HIPAA applies to ex parte communications between defense counsel and heathcare providers, that HIPAA is more stringent that Georgia law, and that it therefore "preempts Georgia law with regard to ex parte communications between defense counsel and plaintiff's prior treating physicians because HIPAA affords patients more control over their medical records when it comes to informal contacts between litigants and physicians."(fn4) The Supreme Court instructed, "Thus, in order for defense counsel to informally interview plaintiff's treating physicians, they must first obtain a valid authorization, or court order or otherwise comply with the provisions of 45 CFR § 164.512 (e)."(fn5)
Despite the relevant HIPAA protections, which were enacted in 2003,(fn6) Hamilton provided an authorization form that did not in any way restrict discussions between defense counsel and Hamilton's former treating physicians.(fn7) Moreover, Shumpert's attorney contacted Hamilton's prior treating cardiologist at a time when arguably the applicability of HIPAA to ex parte communications was uncertain. Under these circumstances, the trial court did not clearly abuse its discretion in denying the Hamiltons' motion to impose sanctions against defense counsel.(fn8)
2. The Hamiltons contend that the trial court erred by curtailing their use of a note dictated as part of Hamilton's medical records by the rheumatologist at the Harbin Clinic who had seen Hamilton in October 2002 and January 2003. According to the Hamiltons, the note showed that during the January visit, the rheumatologist had considered that Hamilton may have had some form of scleroderma. They argue that the note was therefore proper impeachment and rebuttal evidence because it demonstrated an "important contradiction between what the treating doctors actually thought and recorded in the medical records compared to what Defendants' one rheumatology expert `assumed' they thought."
During cross-examination, the defense rheumatology expert stated that she did not "think [the treating rheumatologist] was considering diffused scleroderma." This response led to the Hamiltons putting the note at issue on display for the jury. The defense objected, arguing that the Hamiltons were attempting to use the note in an impermissible manner and pointing out that the note had been written on April 10 by the treating rheumatologist after reflecting upon his visit with Hamilton the previous January. At a bench conference, Hamilton's counsel explained that the treating rheumatologist had included in his note that, during that previous January, he "felt that she had a probable evolving case of Crest syndrome or diffuse scleroderma." After hearing additional argument, the court ordered that the note be taken off display, remarking that the Hamiltons had already called the treating rheumatologist for cross-examination in their case in chief.
The record shows that, during their examination of the treating rheumatologist, the Hamiltons asked the doctor about his October and January visits with Hamilton. He testified that during his October 2002 evaluation of her, he considered "evolving scleroderma" as a possibility, and he identified a trial exhibit as his handwritten note showing so. The rheumatologist also identified another exhibit as his dictated note concerning the same matter. In that note, the doctor recorded, "There has been a question of evolving connective tissue disease, specifically limited scleroderma." The rheumatologist was further asked whether he had mentioned any other possible type of scleroderma in the note. He responded, "Well in my assessment I wrote down, certainly lupus, mixed connective tissue disease, scleroderma and limited scleroderma are all in the differential diagnosis. So I mentioned diffuse scleroderma." The rheumatologist testified further that, when Hamilton returned in January 2003, he recorded in a note his assessment of "probable evolving Crest syndrome or scleroderma." And he identified a trial exhibit as this note. Upon further questioning about whether he had referenced in his October or January notes "sine scleroderma," he answered no. He explained,
There wouldn't be any references for sine scleroderma because it requires basically a pathological diagnosis, the piece of an organ. And . . . clinically she did not have scleroderma and basically sine scleroderma means scleroderma without scleroderma. So she didn't have skin changes and I didn't have a piece of an organ that would permit me to make such a diagnosis.
"Control of the nature and scope of cross-examination of a witness is a matter within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion."(fn9) Because the record shows that the Hamiltons were afforded ample opportunity to cross-examine the rheumatologist regarding his impressions at the time of his visits with Hamilton and because the information cited in the April 10 note was cumulative of what the rheumatologist had already testified and of his other notes shown to the jury, we find no reversible error in the trial court's curtailment of the use of the April 10 note.(fn10)
3. The Hamiltons contend that the trial court erred by refusing to give a curative instruction or rebuke defense counsel in the jury's presence in response to impermissible remarks made by one of the defense attorneys during closing argument. The Hamiltons complain of the following remarks: "I know that [the plaintiffs' lawyer] is going to probably ask you for an awful lot of money. A lot of lawyers ask for a lot of money and hope to get a percent of it." Without objection, the attorney went on to complete the closing argument.
At the conclusion of that particular closing argument, the court excused the jury out of the courtroom for a 10-minute break. Plaintiffs' counsel asked the trial judge, "[W]hat are we going to do about [the defense counsel's] comment that we will get a percentage?" The lawyer who had just given the closing argument denied having made or implied such a reference. The court agreed that the cited remarks could not reasonably be interpreted as commenting on a contingency fee recovery. The court therefore denied the plaintiffs' request for a curative instruction, explaining that it found nothing improper about what was said and that an instruction to the jury would needlessly highlight the remarks. The trial proceeded with the plaintiffs' final closing argument.
Arguing that the trial court erred because the remarks impermissibly put a potential contingency fee in issue, the Hamiltons cite OCGA § 9-10-185:
Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds.
Counsel is permitted wide latitude in closing argument, and defining the bounds of such argument is within the trial court's discretion.(fn11) However, the law forbids injecting into a case, by way of closing argument, facts not in the record and calculated to prejudice the opposing party.(fn12) Thus,
a jury may not generally consider plaintiff's attorney fees when awarding damages. . . . The source of payment of attorney fees is irrelevant to the issue of damages. Evidence of it would be inadmissible, and argument on it is doubly wrong. It is not a subject of legitimate concern within the scope of [the jury's deliberations].(fn13)
Accordingly, this court has consistently condemned such argument as improper.(fn14) In the instant case, any contingency fee agreement had no relevance to any issue of liability or damages in the case.
Even assuming that defense counsel's remarks exceeded the permissible bounds of propriety,(fn15) there was no timely objection. The time to object is "when the impropriety occurs at trial."(fn16) In Butler v. State,(fn17) where the defendant did not object to the prosecutor's comment "at the time it was made," but waited until the end of the closing argument to move for a mistrial,(fn18) the Supreme Court of Georgia held that the objection and motion for mistrial were untimely.(fn19) Soon thereafter, the Supreme Court explained in Mullins v. Thompson(fn20) that in Butler it had "rejected the notion that a motion for mistrial based upon an improper closing argument can be made after closing argument, and held, to the contrary, that such a motion must be made at the time the improper argument is uttered."(fn21) Since those cases, both the Supreme Court and this court have consistently held that motions for mistrial and objections based upon improper closing argument are untimely when first made after the closing argument has concluded.(fn22)
The Hamiltons did not interpose an objection at the time the remarks were made; they waited until the end of the closing argument. Although their objection was apparently moments after the cited remarks and even before the trial had advanced to either another phase or another (here, the plaintiffs' final) closing argument,(fn23) under Butler and its progeny, the Hamiltons' objection was untimely.
"When, as here, no timely objection is interposed, the test for reversible error is whether the improper argument in reasonable probability changed the result of the trial."(fn24) The Hamiltons have not demonstrated, and our review of the record does not convince us, that there is such reasonable probability here.
Judgment affirmed.
Smith, P.J., and Bernes, J., concur.
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We offer a free initial consultation to all prospective clients.
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Augusta Georgia Medical Malpractice Lawyer - CLAY v. RIPPY
CLAY
v.
RIPPY et al.
A09A0681.
Court of Appeals of Georgia.
July 16, 2009
ANDREWS, Presiding Judge.
Tina Clay appeals from the trial court's grant of summary judgment to the defendant health care providers on her child's claim of a "preconception tort." The complaint alleged that defendants committed medical malpractice by failing to advise Clay to take folic acid supplements before she became pregnant. Because we agree that there is no evidence that the doctors's treatment of Clay fell below the requisite standard of care, we affirm.
The plaintiff in this case, six-year-old Tia Guinn, alleges that the defendant health care providers committed medical malpractice by failing to advise her mother to take folic acid supplements before she was conceived. Guinn claimed that the supplements were necessary to reduce the risk of neurological defects, especially in light of the fact that her mother had already conceived a child with such defects. She alleges that this failure to advise her mother caused her to be born with profound neurological problems.
Viewed in the light most favorable to Guinn and Clay, the record shows that Clay went to her county health department in March 1999 to see if she was pregnant. She was 19 years old, had never been to a gynecologist and had no primary care physician. Clay was referred to obstetrician gynecologist Lee Rippy because she was 11 weeks pregnant. Although she could not recall Rippy's prescribing or giving her prenatal vitamins, Rippy's records show that he placed her on prenatal vitamins when she first saw him.
In April 1999, Rippy saw a "shadow" on Clay's ultrasound and referred her to Dr. Richard Molina at Atlanta Maternal-Fetal Medicine, a specialist who managed high-risk pregnancies, for a high-resolution ultrasound and consultation. On May 4, 1999, Molina confirmed that, at 21 weeks, Clay's baby had a severe neural tube defect. Molina counseled Clay regarding the baby's prognosis and her options, which included a therapeutic termination of the pregnancy. Clay testified she was "kind of in shock" and did not discuss with Molina what the diagnosis would mean for a future pregnancy. Molina scheduled Clay for a follow-up ultrasound on May 24, 1999, and faxed his results to Dr. Rippy.
Clay saw Rippy two days later and he recommended that she terminate the pregnancy. Rippy told Clay that the baby would have severe birth defects and would not likely survive. Clay testified she had no discussion with Rippy regarding folic acid, prenatal vitamins, causation, or what the diagnosis would mean for a future pregnancy. Clay decided to terminate the pregnancy and went to Dr. Malloy, who performed the procedure at the Atlanta SurgiCenter. Although instructed to do so by Rippy, Clay did not schedule a follow-up appointment with him following the termination.
In 2002, Clay was seen in the emergency room in Panama City and found out that she was pregnant again. She returned to Rippy for prenatal care in April 2002. Clay stated that she did not recall Rippy's prescribing prenatal vitamins until she asked for them in the third or fourth month of her pregnancy and said she had no discussions with him about her baby's increased risk of spina bifida or the importance of folic acid. She took prenatal vitamins throughout the rest of her pregnancy.
Clay underwent numerous tests recommended by Rippy during her 2002 pregnancy. The tests confirmed that this child was also developing with serious neurological defects. Clay chose not to terminate this pregnancy, and Tia Guinn was born in November 2002 with severe birth defects.
On behalf of her daughter, Clay sued Rippy and his practice, Newton County Women's Health Center, P.C., d/b/a Newton Women's Health Center; Molina, the maternal-fetal medicine specialist who examined her in 1999, and his practice, Atlanta Maternal-Fetal Medicine, P.C.; Malloy, the physician who terminated her pregnancy in 1999; and the clinic where the termination was performed, Atlanta Surgicenter, Inc.(fn1) Clay alleged that the doctors committed malpractice by failing to prescribe and recommend that she take 4 mg of folic acid daily before conceiving again to reduce the risk of having another baby with neurological defects.
In his affidavit, Clay's expert opined that all of the defendants were obligated, following the termination of her 1999 pregnancy, to recommend and prescribe for Clay a daily 4 mg regimen of folic acid in order to prevent a recurrence of a neural tube defect in a subsequent pregnancy. According to the medical records, none of the doctors made such a recommendation or issued a prescription, or even spoke to her about the connection between folic acid and the prevention of this birth defect. The expert concluded that Tia Guinn had "severe spina bifida as a direct result of the failure of her health care providers to administer appropriate folic acid to her in the peri-conceptual time period."
In granting summary judgment, the trial court noted that the statute of limitation does not bar the child's claim because OCGA § 9-3-73 (b) allows a minor to bring a medical malpractice action within two years from the date of her fifth birthday if the cause of action arose before she became five, as happened here. The court then found that the link between the doctors' conduct and the child's injuries was "too remote for the law to countenance a recovery" because the doctors only treated the mother in conjunction with her 1999 pregnancy and she never returned to any of them for post-termination or preconception care, treatment, or consultation. Under the facts and circumstances of this case, the trial court held, the connection between the doctors' actions and the child's injuries was "too remote to hold that Defendants owed a duty of care to unanticipated unconceived children simply because Clay was of childbearing years." This appeal followed.
First, we agree with Clay that, given the proper circumstances, a cause of action could exist in Georgia for preconception torts. McAuley v. Wills, 251 Ga. 3, 6 (303 SE2d 258) (1983) holds: "To the extent that the trial court ruled that a person owes no duty of care toward an unconceived child, we must disagree. Cases cited in Division 4, supra, show that, at least in some situations, a person should be under a duty of care toward an unconceived child." Id. at 6. Division 4 cites medical malpractice cases and one suit against a pharmaceutical company. Id. at 5-6.
Next, we look to the specific claims against each of the doctors. "[T]here are three essential elements in a medical malpractice claim: (1) the duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained." Hawkins v. Greenberg, 166 Ga. App. 574, 575 (304 SE2d 922) (1983).
Here, the medical malpractice affidavit sets out the standard of care as follows: "Following the termination of Ms. Clay's 1999 pregnancy, Dr. Rippy, Dr. Molina and Dr. Malloy each were obligated by the standard of care to recommend and prescribe for Ms. Clay a daily 4 mg. regimen of folic acid in order to prevent a recurrence of a neural tube defect in the event of a subsequent pregnancy. None of them made such a recommendation or issued such a prescription; nor did any of them, according to the medical records, even speak to Ms. Clay about folic acid and the prevention of a neural tube defect."
1. With regard to the claims against Dr. Rippy, the affidavit states: "The negligence and departures from the standard of care of Dr. Rippy . . . include a failure to recommend and prescribe appropriate folic acid to Ms. Clay following the termination of her 1999 pregnancy."(fn2) Rippy did not dispute that the standard of care required that he "supply the information [regarding the link between folic acid and NTD] in an understandable way and be complete."
Rippy claimed that he told Clay about the relationship between folic acid and neural tube defects when he saw her on May 6, 1999, before the first pregnancy was terminated, and never had the opportunity to reinforce that counseling regarding future pregnancies because she did not call him to make an appointment for a follow-up visit. When asked whether he would send a letter or make a phone call to Clay regarding the recommendation she take folic acid if he had not told her about it, he responded, "No. I would not have. . . . [S]he knew very well when she left the office that day it was her obligation she needed to come back in for a visit, and that is more than sufficient." By the time Clay returned to see Rippy, she was pregnant again and it was too late for a folic acid supplement to reduce the risks of birth defects.
Clay disputed Rippy's testimony that he advised her about folic acid at her May 6 visit before she terminated the 1999 pregnancy. She testified that at no time between the termination of her 1999 pregnancy and her 2002 pregnancy did he call or send a letter telling her she should come see him for an annual visit or recommending she take folic acid.
Assuming that Rippy did not discuss the need for folic acid at the May 6 visit, Rippy's undisputed testimony at his deposition was that he intended to discuss these issues and make medical recommendations to Clay at a follow-up visit. Rippy testified that he told Clay at the May 6 visit that "it was important" that she schedule a follow-up visit and that he was "quite specific" on the subject. Rippy said that he could not schedule a follow-up visit on May 6 while Clay was in the office because Clay was going to another physician and Rippy did not know what the outcome of that visit would be -- or even if Clay would go through with the termination of the pregnancy. Rippy testified that the May 6 visit was not the time to counsel Clay on future pregnancies. She was crying and upset and faced with a difficult decision to terminate her pregnancy.
In light of this, we conclude that there is no evidence that Rippy violated his duty of care. Rippy did not know that this was the last time he would see Clay. Clay terminated the physician-patient relationship after this visit. Even if the duty of care survived this termination, it became impossible to satisfy because Clay did not make an appointment for follow-up care, as instructed.
Moreover, nowhere does the medical malpractice affidavit state that any of the doctors was required to discuss this issue before the termination of Clay's 1999 pregnancy or that the duty of care requires the doctor to monitor patient records, to identify patients who have not followed instructions to schedule an appointment, to determine whether the patient is treating with another doctor, or, if not, to determine whether there is information that was not provided to the patient, and then to determine the best way to communicate this information to the patient. This is not the standard of care set out in the malpractice affidavit and we find no evidence in the record raising any issue of fact that this could be the standard of care.
"A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e)." Lau's Corp. v. Haskins, 261 Ga. 491, 491 (405 SE2d 474) (1991). In this case, Rippy has shown that his treatment of Clay did not fall below the standard of care set out in the affidavit and Clay has failed to come forward with any evidence in response that would create a triable issue of fact. Therefore, the trial court's grant of summary judgment to Rippy should be affirmed.
2. With regard to the claims against Dr. Molina, the record shows that Molina saw Clay one time for a consultation. Rippy sent Clay to Molina for the specific purpose of conducting and interpreting a high-resolution ultrasound, counseling Clay regarding his findings, and faxing his conclusions to Rippy. Molina thus had no ongoing doctor-patient relationship with Clay, but rather a circumscribed relationship related solely to managing her 1999 pregnancy. Clay's expert's affidavit is incorrect, therefore, when it states that Molina, or any of the doctors, failed in their care and treatment of Clay from 1992 through 2002.(fn3) It follows that the trial court did not err in granting summary judgment to Molina and to his practice, Atlanta Maternal-Fetal Medicine.
3. Likewise, the trial court did not err in granting summary judgment to Dr. Malloy. It is undisputed that Malloy's only contact with Clay was to terminate her pregnancy in 1999. Malloy did not treat Clay on an ongoing basis and only saw her once. Clearly the physician had a duty to perform the procedure and anything related to it without committing malpractice, but that does not constitute a duty to counsel the patient regarding future pregnancies. Given the nature of the limited doctor-patient relationship and lack of forseeability that injury to a child not yet conceived might arise from the relationship, Dr. Malloy had no duty to advise Clay about how to lower the risk of birth defects in potential future pregnancies.
4. Clay also sued Atlanta SurgiCenter, the facility at which Dr. Malloy performed the procedure terminating the 1999 pregnancy. But Clay did not seek counseling about future pregnancies at the facility, and the facility's employees had no duty to counsel Clay regarding the link between birth defects and folic acid. Clay argues that because the center asks its patients about their planned post-termination contraception, it must therefore contemplate the issue of possible future pregnancies.
This argument is without merit. On Clay's SurgiCenter counseling form next to the line that reads "birth control method OCS" (oral contraceptive), the SurgiCenter employee wrote "follow up ob/gyn." Malloy testified that this notation meant that when asked, Clay said she would obtain birth control information from her own doctor and did not seek it from the facility. Contrary to Clay's contention, asking the question does not create a duty to counsel in this context. The trial court did not err in granting summary judgment to Atlanta SurgiCenter.
Judgment affirmed.
Johnson, P.J., and Mikell, J., concur. Miller, C.J., concurs and concurs specially. Blackburn, P.J., Barnes and Ellington, JJ., concur in part and dissent in part.
MILLER, Chief Judge, concurring specially.Burnside Wall Attorneys at Law are Augusta GA personal injury lawyers and car accident attorneys. We represent injury victims in dog bite, car and truck wreck cases, medical malpractice, scarring injury, and spinal cord injury cases.
We offer a free initial consultation to all prospective clients.
Augusta Car Wreck Lawyer, Truck Accident Attorney, Augusta Personal Injury Lawyer
v.
RIPPY et al.
A09A0681.
Court of Appeals of Georgia.
July 16, 2009
ANDREWS, Presiding Judge.
Tina Clay appeals from the trial court's grant of summary judgment to the defendant health care providers on her child's claim of a "preconception tort." The complaint alleged that defendants committed medical malpractice by failing to advise Clay to take folic acid supplements before she became pregnant. Because we agree that there is no evidence that the doctors's treatment of Clay fell below the requisite standard of care, we affirm.
The plaintiff in this case, six-year-old Tia Guinn, alleges that the defendant health care providers committed medical malpractice by failing to advise her mother to take folic acid supplements before she was conceived. Guinn claimed that the supplements were necessary to reduce the risk of neurological defects, especially in light of the fact that her mother had already conceived a child with such defects. She alleges that this failure to advise her mother caused her to be born with profound neurological problems.
Viewed in the light most favorable to Guinn and Clay, the record shows that Clay went to her county health department in March 1999 to see if she was pregnant. She was 19 years old, had never been to a gynecologist and had no primary care physician. Clay was referred to obstetrician gynecologist Lee Rippy because she was 11 weeks pregnant. Although she could not recall Rippy's prescribing or giving her prenatal vitamins, Rippy's records show that he placed her on prenatal vitamins when she first saw him.
In April 1999, Rippy saw a "shadow" on Clay's ultrasound and referred her to Dr. Richard Molina at Atlanta Maternal-Fetal Medicine, a specialist who managed high-risk pregnancies, for a high-resolution ultrasound and consultation. On May 4, 1999, Molina confirmed that, at 21 weeks, Clay's baby had a severe neural tube defect. Molina counseled Clay regarding the baby's prognosis and her options, which included a therapeutic termination of the pregnancy. Clay testified she was "kind of in shock" and did not discuss with Molina what the diagnosis would mean for a future pregnancy. Molina scheduled Clay for a follow-up ultrasound on May 24, 1999, and faxed his results to Dr. Rippy.
Clay saw Rippy two days later and he recommended that she terminate the pregnancy. Rippy told Clay that the baby would have severe birth defects and would not likely survive. Clay testified she had no discussion with Rippy regarding folic acid, prenatal vitamins, causation, or what the diagnosis would mean for a future pregnancy. Clay decided to terminate the pregnancy and went to Dr. Malloy, who performed the procedure at the Atlanta SurgiCenter. Although instructed to do so by Rippy, Clay did not schedule a follow-up appointment with him following the termination.
In 2002, Clay was seen in the emergency room in Panama City and found out that she was pregnant again. She returned to Rippy for prenatal care in April 2002. Clay stated that she did not recall Rippy's prescribing prenatal vitamins until she asked for them in the third or fourth month of her pregnancy and said she had no discussions with him about her baby's increased risk of spina bifida or the importance of folic acid. She took prenatal vitamins throughout the rest of her pregnancy.
Clay underwent numerous tests recommended by Rippy during her 2002 pregnancy. The tests confirmed that this child was also developing with serious neurological defects. Clay chose not to terminate this pregnancy, and Tia Guinn was born in November 2002 with severe birth defects.
On behalf of her daughter, Clay sued Rippy and his practice, Newton County Women's Health Center, P.C., d/b/a Newton Women's Health Center; Molina, the maternal-fetal medicine specialist who examined her in 1999, and his practice, Atlanta Maternal-Fetal Medicine, P.C.; Malloy, the physician who terminated her pregnancy in 1999; and the clinic where the termination was performed, Atlanta Surgicenter, Inc.(fn1) Clay alleged that the doctors committed malpractice by failing to prescribe and recommend that she take 4 mg of folic acid daily before conceiving again to reduce the risk of having another baby with neurological defects.
In his affidavit, Clay's expert opined that all of the defendants were obligated, following the termination of her 1999 pregnancy, to recommend and prescribe for Clay a daily 4 mg regimen of folic acid in order to prevent a recurrence of a neural tube defect in a subsequent pregnancy. According to the medical records, none of the doctors made such a recommendation or issued a prescription, or even spoke to her about the connection between folic acid and the prevention of this birth defect. The expert concluded that Tia Guinn had "severe spina bifida as a direct result of the failure of her health care providers to administer appropriate folic acid to her in the peri-conceptual time period."
In granting summary judgment, the trial court noted that the statute of limitation does not bar the child's claim because OCGA § 9-3-73 (b) allows a minor to bring a medical malpractice action within two years from the date of her fifth birthday if the cause of action arose before she became five, as happened here. The court then found that the link between the doctors' conduct and the child's injuries was "too remote for the law to countenance a recovery" because the doctors only treated the mother in conjunction with her 1999 pregnancy and she never returned to any of them for post-termination or preconception care, treatment, or consultation. Under the facts and circumstances of this case, the trial court held, the connection between the doctors' actions and the child's injuries was "too remote to hold that Defendants owed a duty of care to unanticipated unconceived children simply because Clay was of childbearing years." This appeal followed.
First, we agree with Clay that, given the proper circumstances, a cause of action could exist in Georgia for preconception torts. McAuley v. Wills, 251 Ga. 3, 6 (303 SE2d 258) (1983) holds: "To the extent that the trial court ruled that a person owes no duty of care toward an unconceived child, we must disagree. Cases cited in Division 4, supra, show that, at least in some situations, a person should be under a duty of care toward an unconceived child." Id. at 6. Division 4 cites medical malpractice cases and one suit against a pharmaceutical company. Id. at 5-6.
Next, we look to the specific claims against each of the doctors. "[T]here are three essential elements in a medical malpractice claim: (1) the duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained." Hawkins v. Greenberg, 166 Ga. App. 574, 575 (304 SE2d 922) (1983).
Here, the medical malpractice affidavit sets out the standard of care as follows: "Following the termination of Ms. Clay's 1999 pregnancy, Dr. Rippy, Dr. Molina and Dr. Malloy each were obligated by the standard of care to recommend and prescribe for Ms. Clay a daily 4 mg. regimen of folic acid in order to prevent a recurrence of a neural tube defect in the event of a subsequent pregnancy. None of them made such a recommendation or issued such a prescription; nor did any of them, according to the medical records, even speak to Ms. Clay about folic acid and the prevention of a neural tube defect."
1. With regard to the claims against Dr. Rippy, the affidavit states: "The negligence and departures from the standard of care of Dr. Rippy . . . include a failure to recommend and prescribe appropriate folic acid to Ms. Clay following the termination of her 1999 pregnancy."(fn2) Rippy did not dispute that the standard of care required that he "supply the information [regarding the link between folic acid and NTD] in an understandable way and be complete."
Rippy claimed that he told Clay about the relationship between folic acid and neural tube defects when he saw her on May 6, 1999, before the first pregnancy was terminated, and never had the opportunity to reinforce that counseling regarding future pregnancies because she did not call him to make an appointment for a follow-up visit. When asked whether he would send a letter or make a phone call to Clay regarding the recommendation she take folic acid if he had not told her about it, he responded, "No. I would not have. . . . [S]he knew very well when she left the office that day it was her obligation she needed to come back in for a visit, and that is more than sufficient." By the time Clay returned to see Rippy, she was pregnant again and it was too late for a folic acid supplement to reduce the risks of birth defects.
Clay disputed Rippy's testimony that he advised her about folic acid at her May 6 visit before she terminated the 1999 pregnancy. She testified that at no time between the termination of her 1999 pregnancy and her 2002 pregnancy did he call or send a letter telling her she should come see him for an annual visit or recommending she take folic acid.
Assuming that Rippy did not discuss the need for folic acid at the May 6 visit, Rippy's undisputed testimony at his deposition was that he intended to discuss these issues and make medical recommendations to Clay at a follow-up visit. Rippy testified that he told Clay at the May 6 visit that "it was important" that she schedule a follow-up visit and that he was "quite specific" on the subject. Rippy said that he could not schedule a follow-up visit on May 6 while Clay was in the office because Clay was going to another physician and Rippy did not know what the outcome of that visit would be -- or even if Clay would go through with the termination of the pregnancy. Rippy testified that the May 6 visit was not the time to counsel Clay on future pregnancies. She was crying and upset and faced with a difficult decision to terminate her pregnancy.
In light of this, we conclude that there is no evidence that Rippy violated his duty of care. Rippy did not know that this was the last time he would see Clay. Clay terminated the physician-patient relationship after this visit. Even if the duty of care survived this termination, it became impossible to satisfy because Clay did not make an appointment for follow-up care, as instructed.
Moreover, nowhere does the medical malpractice affidavit state that any of the doctors was required to discuss this issue before the termination of Clay's 1999 pregnancy or that the duty of care requires the doctor to monitor patient records, to identify patients who have not followed instructions to schedule an appointment, to determine whether the patient is treating with another doctor, or, if not, to determine whether there is information that was not provided to the patient, and then to determine the best way to communicate this information to the patient. This is not the standard of care set out in the malpractice affidavit and we find no evidence in the record raising any issue of fact that this could be the standard of care.
"A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e)." Lau's Corp. v. Haskins, 261 Ga. 491, 491 (405 SE2d 474) (1991). In this case, Rippy has shown that his treatment of Clay did not fall below the standard of care set out in the affidavit and Clay has failed to come forward with any evidence in response that would create a triable issue of fact. Therefore, the trial court's grant of summary judgment to Rippy should be affirmed.
2. With regard to the claims against Dr. Molina, the record shows that Molina saw Clay one time for a consultation. Rippy sent Clay to Molina for the specific purpose of conducting and interpreting a high-resolution ultrasound, counseling Clay regarding his findings, and faxing his conclusions to Rippy. Molina thus had no ongoing doctor-patient relationship with Clay, but rather a circumscribed relationship related solely to managing her 1999 pregnancy. Clay's expert's affidavit is incorrect, therefore, when it states that Molina, or any of the doctors, failed in their care and treatment of Clay from 1992 through 2002.(fn3) It follows that the trial court did not err in granting summary judgment to Molina and to his practice, Atlanta Maternal-Fetal Medicine.
3. Likewise, the trial court did not err in granting summary judgment to Dr. Malloy. It is undisputed that Malloy's only contact with Clay was to terminate her pregnancy in 1999. Malloy did not treat Clay on an ongoing basis and only saw her once. Clearly the physician had a duty to perform the procedure and anything related to it without committing malpractice, but that does not constitute a duty to counsel the patient regarding future pregnancies. Given the nature of the limited doctor-patient relationship and lack of forseeability that injury to a child not yet conceived might arise from the relationship, Dr. Malloy had no duty to advise Clay about how to lower the risk of birth defects in potential future pregnancies.
4. Clay also sued Atlanta SurgiCenter, the facility at which Dr. Malloy performed the procedure terminating the 1999 pregnancy. But Clay did not seek counseling about future pregnancies at the facility, and the facility's employees had no duty to counsel Clay regarding the link between birth defects and folic acid. Clay argues that because the center asks its patients about their planned post-termination contraception, it must therefore contemplate the issue of possible future pregnancies.
This argument is without merit. On Clay's SurgiCenter counseling form next to the line that reads "birth control method OCS" (oral contraceptive), the SurgiCenter employee wrote "follow up ob/gyn." Malloy testified that this notation meant that when asked, Clay said she would obtain birth control information from her own doctor and did not seek it from the facility. Contrary to Clay's contention, asking the question does not create a duty to counsel in this context. The trial court did not err in granting summary judgment to Atlanta SurgiCenter.
Judgment affirmed.
Johnson, P.J., and Mikell, J., concur. Miller, C.J., concurs and concurs specially. Blackburn, P.J., Barnes and Ellington, JJ., concur in part and dissent in part.
MILLER, Chief Judge, concurring specially.Burnside Wall Attorneys at Law are Augusta GA personal injury lawyers and car accident attorneys. We represent injury victims in dog bite, car and truck wreck cases, medical malpractice, scarring injury, and spinal cord injury cases.
We offer a free initial consultation to all prospective clients.
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Injury Lawyer in Augusta Georgia - JORDAN JONES AND GOULDING, INC. v. NEWELL RECYCLING
JORDAN JONES AND GOULDING, INC.
v.
NEWELL RECYCLING OF ATLANTA, INC.
A09A1397.
Court of Appeals of Georgia
July 21, 2009
BLACKBURN, Presiding Judge.
Jordan Jones and Goulding, Inc. ("JJ&G"), a professional engineering firm, appeals from the trial court's denial of its motion for summary judgment on the breach of contract claim asserted against it by Newell Recycling of Atlanta, Inc. ("Newell"). JJ&G asserts that the trial court erred in finding that Newell's claims were subject to the six-year statute of limitation applicable to actions on written contracts, as opposed to the four-year statute of limitation applicable to claims of professional malpractice sounding in contract. Alternatively, JJ&G argues that even if viewed as strictly a breach of contract action, Newell's claim is subject to the four-year limitation period applicable to contracts that are partly in writing and partly in parol. We find that the record shows unequivocally that Newell is asserting a professional malpractice claim, based upon JJ&G's alleged breach of its contractual duties to provide competent, professional design and engineering services. Thus, because Newell failed to file suit within the applicable, four-year limitation period, we reverse the trial court's order.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.
Iwan Renovations, Inc. v. N. Atlanta Nat'l Bank.(fn1)
So viewed, the record shows that Newell is a corporation in the business of purchasing and processing scrap metal, which it then re-sells. In 1997, Newell contacted JJ&G about providing design and engineering services for a new automobile shredding facility it wanted to build in Gwinnett County. After several meetings with representatives from Newell, JJ&G prepared a proposal for the project, titled "Draft Scope of Work[:] Newell Recycling of Atlanta, New Site -- Duluth, Georgia," and forwarded the same to Newell on August 15, 1997.(fn2) (Emphasis in original.) The Draft Scope of Work outlined six different project phases that JJ&G proposed to work on and attached thereto was a detailed, five-page task list related to the first project phase, environmental site assessment. The cover letter that JJ&G sent to Newell with these documents explained:
We are enclosing a draft Scope of Work which we feel addresses our environmental assessment and permitting needs as well as facilities planning/design and bidding/construction phase needs for the New Recycling Facility in Duluth. We welcome your input . . . to ensure that we have covered all the bases. While you are reviewing this Scope of Work for completeness, we will be developing a budget estimate.
On August 22, 1997, JJ&G sent Newell a second letter, providing them with a cost estimate for the first three project phases outlined in the Draft Scope of Work. The letter further stated: "The [cost of the] remaining 3 [phases] can not be accurately estimated until some definition of your proposed facilities can be developed and a site visit of the existing buildings and features can be arranged. We would propose to perform this work on an hourly bases and would only bill you for completed task."
Representatives of Newell and JJ&G thereafter met several times to discuss and plan the details of the new facility and the engineering services that JJ&G would provide in connection with the project. By the spring of 1998, the parties had verbally agreed that there would be concrete pavement around the shredding machine to act as a work platform and to control drainage. JJ&G, therefore, developed a design for these pavements, which specified sub-grade preparation, concrete mix, and concrete thickness, and added this design to the site plans and specifications. Site construction began in the fall of 1998, with a firm other than JJ&G acting as the construction manager. During the course of construction, JJ&G made several revisions to the plans and specifications, including changes to the concrete pavement design. JJ&G made the last change to the concrete pavement design in June 1999, and completed all engineering work for such pavements by the end of July 1999. All engineering and construction work on the project was completed by the end of September 1999.
After the project was completed and the facility became operational, the concrete paving surrounding the shredder began to crack. In May 2000, Newell informed JJ&G that the concrete pavement was failing. Blaming that failure on alleged inadequacies in JJ&G's design of the concrete pavement, Newell initiated the current litigation against JJ&G in August 2004. Newell's complaint asserts a single claim for breach of contract, and alleges that "[b]y entering into the [c]ontract with Newell to provide the design of the Project, JJ&G contracted to perform its required services with that degree of care, skill, and ability ordinarily expected of prudent design professionals and civil engineers under similar circumstances. . . ." The complaint sets forth nine alleged contractual breaches, and states that these acts
constitute[d] the performance of design professional services under the [c]ontract with Newell in a manner which was in breach of said [c]ontract because such services were below that degree of care, skill, and diligence commonly possessed [and] exercised by reasonably skillful and prudent design professionals in Georgia . . . under the same or similar circumstances and said breaches of the [c]ontract with Newell constitute design professional negligence and malpractice.
To comply with the requirement of OCGA § 9-11-9.1, which applies to all claims for professional malpractice, Newell attached to its complaint the affidavit of an engineering expert.
JJ&G moved for summary judgment, arguing that Newell's complaint asserted a claim for either professional malpractice, breach of an oral contract, or breach of a contract that was partly in writing and partly in parol, and that each of these claims was subject to a four-year statute of limitation. JJ&G argued that any contractual breach occurred either at the time the concrete paving was designed (June 1999) or when the engineering work on such paving was completed (July 1999), and that Newell was aware of the problems with the concrete paving no later than May 2000. Thus, Newell's failure to file suit until August 2004 meant that its claim was time-barred.
The trial court denied JJ&G's summary judgment motion, finding: (1) that while a four-year statute of limitation applied to claims for legal malpractice based upon a written contract for legal services, malpractice claims based on a written contract for other types of professional services were subject to the six-year limitation period found in OCGA § 9-3-24(fn3); and (2) there existed a question of fact as to whether JJ&G's August 15, 1997 and August 22, 1997 letters to Newell, together with the Draft Scope of Work, constituted a written contract. JJ&G sought and received a certificate of immediate review for the trial court's order and filed an application for an interlocutory appeal.(fn4) We granted that application and this appeal followed.
As is explained below, assuming arguendo that JJ&G's August 1997 letters to Newell, together with the Draft Scope of Work, are sufficient to constitute an enforceable, written contract between the parties, Newell's claim is nevertheless barred by the applicable statute of limitation.
The allegations of the complaint demonstrate that Newell is asserting a professional malpractice claim against JJ&G. See Goodin v. Gwinnett Health System(fn5) ("[a]n action alleges professional malpractice when it calls into question the conduct of a professional in his area of expertise") (punctuation omitted). Specifically, Newell's claim is based upon JJ&G's alleged breach of its contractual obligation to provide professional services, by failing to perform such services "in accordance with the professional [standard] of care." Id. See also Mauldin v. Sheffer(fn6) (a claim for engineering malpractice may be brought as either a tort or contract claim).
Under Georgia law, all "malpractice claim[s] sounding in contract [are] governed by the four-year statute of limitation [found] in OCGA § 9-3-25." Harrison v. Beckham.(fn7) See also Consolidated Management Servs. v. Halligan(fn8) ("[a] breach of duty of professional competence falls within the four-year statute of limitation as set forth in OCGA § 9-3-25"). Contrary to the trial court's ruling, Georgia's courts have never limited this holding to cases involving claims of legal malpractice. See Brock v. Allen(fn9) (OCGA § 9-3-25 applies to a malpractice claim against an exterminator); Landmark Eng'g v. Cooper(fn10) (applying the four year statute of limitation to a professional malpractice claim against an engineering firm); Consolidated Management Servs., supra, 186 Ga. App. at 622 (1) (holding that a four-year statute of limitation applies to claims for accounting malpractice).
Despite this precedent, Newell argues that because its professional malpractice claim is based upon a written contract, the six-year limitation period found in OCGA § 9-3-24 should apply. In support of its position, Newell points out that OCGA § 9-3-25 applies to claims asserting a breach of "any implied promise or undertaking," oral contracts, or contracts that are partly in writing and party in parol. See OCGA § 9-3-25; Plumlee v. Davis.(fn11) This argument, however, ignores those cases explicitly holding that OCGA § 9-3-25 applies even to those professional malpractice claims premised on the breach of a written contract for professional services. See, e.g., Old Republic Nat'l Title Ins. Co. v. Atty. Title Servs.;(fn12) Plumlee, supra, 221 Ga. App. at 853 (3). As those cases explained, the four-year statute applies to such claims because the contractual duty allegedly breached is not one specified within the written contract itself. Rather, that obligation is imposed by law and therefore implied in the parties' contract. Old Republic, slip opinion at 8 (1); Plumlee, 221 Ga. App. at 852 (3). See also Hamilton v. Powell, Goldstein, Frazer & Murphy(fn13) ("[t]he law imposes upon . . . professional[s] . . . performing medical, architectural, engineering, and . . . other [professional] services, pursuant to their contracts made with their clients, an obligation" to perform such services in accordance with the applicable standard of care) (punctuation omitted). Newell's claim demonstrates the soundness of this reasoning. Although based on a written contract, Newell's claim of breach is not premised on an express contractual provision. Rather, it is based on JJ&G's breach of its legal obligation to perform the contracted-for services in conformity with the professional standard of care.
Nor do we find any merit in Newell's argument that Costrini v. Hansen Architects,(fn14) relied on by the trial court, requires us to apply a six-year statute of limitation in this case. In Costrini, this Court rejected a trial court's ruling that a claim for breach of a written construction contract was subject to the four-year statute of limitation applicable to tort claims for damage to property (OCGA § 9-3-30), and held that such a claim was governed by the six-year statute applicable to claims for breach of a written contract. We therefore affirmed the trial court's grant of summary judgment in favor of the defendants, finding that the plaintiffs had failed to file suit within six years after the construction work was substantially completed. Id. at 137 (1). Although the defendant in Costrini was an architect, there is nothing in the opinion that suggests the plaintiffs had sued him in his capacity as an architect, for professional malpractice. Specifically, there was no indication that the plaintiffs' claim was based on the parties' contract for the defendant's professional, architectural services, or his failure to perform such professional services in accordance with the applicable standard of care. Rather, it appears that plaintiffs had sued the defendant in his capacity as a general contractor, for ordinary negligence and fraud.
Because Newell's breach of contract claim is premised on a written contract for professional services and "calls into question the conduct of . . . professional[s] in [their] area of expertise[,]" it is a claim for professional malpractice ((punctuation omitted) Baskette v. Atlanta Center for Reproductive Medicine, LLC(fn15)), and the four-year statute of limitation applies. Old Republic, supra, slip op. at 7-8 (1). The statute of limitation began to run on Newell's claim, at the latest, in September 1999, when all engineering work on the project was completed. See, e.g., Jones, Day, Reavis & Pogue v. American Envirecycle, Inc.(fn16) ("a breach of contract would occur upon the commission of the wrongful act violating the contractual duty"). Accordingly, because it did not file suit until August 2004, Newell's claim is time-barred. We therefore reverse the order of the trial court denying JJ&G's motion for summary judgment.
Judgment reversed.
Adams and Doyle, JJ., concur.Burnside Wall Attorneys at Law are Augusta GA personal injury lawyers and car accident attorneys. We represent injury victims in dog bite, car and truck wreck cases, medical malpractice, scarring injury, and spinal cord injury cases.
We offer a free initial consultation to all prospective clients.
Augusta Car Wreck Lawyer, Truck Accident Attorney, Augusta Personal Injury Lawyer
v.
NEWELL RECYCLING OF ATLANTA, INC.
A09A1397.
Court of Appeals of Georgia
July 21, 2009
BLACKBURN, Presiding Judge.
Jordan Jones and Goulding, Inc. ("JJ&G"), a professional engineering firm, appeals from the trial court's denial of its motion for summary judgment on the breach of contract claim asserted against it by Newell Recycling of Atlanta, Inc. ("Newell"). JJ&G asserts that the trial court erred in finding that Newell's claims were subject to the six-year statute of limitation applicable to actions on written contracts, as opposed to the four-year statute of limitation applicable to claims of professional malpractice sounding in contract. Alternatively, JJ&G argues that even if viewed as strictly a breach of contract action, Newell's claim is subject to the four-year limitation period applicable to contracts that are partly in writing and partly in parol. We find that the record shows unequivocally that Newell is asserting a professional malpractice claim, based upon JJ&G's alleged breach of its contractual duties to provide competent, professional design and engineering services. Thus, because Newell failed to file suit within the applicable, four-year limitation period, we reverse the trial court's order.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.
Iwan Renovations, Inc. v. N. Atlanta Nat'l Bank.(fn1)
So viewed, the record shows that Newell is a corporation in the business of purchasing and processing scrap metal, which it then re-sells. In 1997, Newell contacted JJ&G about providing design and engineering services for a new automobile shredding facility it wanted to build in Gwinnett County. After several meetings with representatives from Newell, JJ&G prepared a proposal for the project, titled "Draft Scope of Work[:] Newell Recycling of Atlanta, New Site -- Duluth, Georgia," and forwarded the same to Newell on August 15, 1997.(fn2) (Emphasis in original.) The Draft Scope of Work outlined six different project phases that JJ&G proposed to work on and attached thereto was a detailed, five-page task list related to the first project phase, environmental site assessment. The cover letter that JJ&G sent to Newell with these documents explained:
We are enclosing a draft Scope of Work which we feel addresses our environmental assessment and permitting needs as well as facilities planning/design and bidding/construction phase needs for the New Recycling Facility in Duluth. We welcome your input . . . to ensure that we have covered all the bases. While you are reviewing this Scope of Work for completeness, we will be developing a budget estimate.
On August 22, 1997, JJ&G sent Newell a second letter, providing them with a cost estimate for the first three project phases outlined in the Draft Scope of Work. The letter further stated: "The [cost of the] remaining 3 [phases] can not be accurately estimated until some definition of your proposed facilities can be developed and a site visit of the existing buildings and features can be arranged. We would propose to perform this work on an hourly bases and would only bill you for completed task."
Representatives of Newell and JJ&G thereafter met several times to discuss and plan the details of the new facility and the engineering services that JJ&G would provide in connection with the project. By the spring of 1998, the parties had verbally agreed that there would be concrete pavement around the shredding machine to act as a work platform and to control drainage. JJ&G, therefore, developed a design for these pavements, which specified sub-grade preparation, concrete mix, and concrete thickness, and added this design to the site plans and specifications. Site construction began in the fall of 1998, with a firm other than JJ&G acting as the construction manager. During the course of construction, JJ&G made several revisions to the plans and specifications, including changes to the concrete pavement design. JJ&G made the last change to the concrete pavement design in June 1999, and completed all engineering work for such pavements by the end of July 1999. All engineering and construction work on the project was completed by the end of September 1999.
After the project was completed and the facility became operational, the concrete paving surrounding the shredder began to crack. In May 2000, Newell informed JJ&G that the concrete pavement was failing. Blaming that failure on alleged inadequacies in JJ&G's design of the concrete pavement, Newell initiated the current litigation against JJ&G in August 2004. Newell's complaint asserts a single claim for breach of contract, and alleges that "[b]y entering into the [c]ontract with Newell to provide the design of the Project, JJ&G contracted to perform its required services with that degree of care, skill, and ability ordinarily expected of prudent design professionals and civil engineers under similar circumstances. . . ." The complaint sets forth nine alleged contractual breaches, and states that these acts
constitute[d] the performance of design professional services under the [c]ontract with Newell in a manner which was in breach of said [c]ontract because such services were below that degree of care, skill, and diligence commonly possessed [and] exercised by reasonably skillful and prudent design professionals in Georgia . . . under the same or similar circumstances and said breaches of the [c]ontract with Newell constitute design professional negligence and malpractice.
To comply with the requirement of OCGA § 9-11-9.1, which applies to all claims for professional malpractice, Newell attached to its complaint the affidavit of an engineering expert.
JJ&G moved for summary judgment, arguing that Newell's complaint asserted a claim for either professional malpractice, breach of an oral contract, or breach of a contract that was partly in writing and partly in parol, and that each of these claims was subject to a four-year statute of limitation. JJ&G argued that any contractual breach occurred either at the time the concrete paving was designed (June 1999) or when the engineering work on such paving was completed (July 1999), and that Newell was aware of the problems with the concrete paving no later than May 2000. Thus, Newell's failure to file suit until August 2004 meant that its claim was time-barred.
The trial court denied JJ&G's summary judgment motion, finding: (1) that while a four-year statute of limitation applied to claims for legal malpractice based upon a written contract for legal services, malpractice claims based on a written contract for other types of professional services were subject to the six-year limitation period found in OCGA § 9-3-24(fn3); and (2) there existed a question of fact as to whether JJ&G's August 15, 1997 and August 22, 1997 letters to Newell, together with the Draft Scope of Work, constituted a written contract. JJ&G sought and received a certificate of immediate review for the trial court's order and filed an application for an interlocutory appeal.(fn4) We granted that application and this appeal followed.
As is explained below, assuming arguendo that JJ&G's August 1997 letters to Newell, together with the Draft Scope of Work, are sufficient to constitute an enforceable, written contract between the parties, Newell's claim is nevertheless barred by the applicable statute of limitation.
The allegations of the complaint demonstrate that Newell is asserting a professional malpractice claim against JJ&G. See Goodin v. Gwinnett Health System(fn5) ("[a]n action alleges professional malpractice when it calls into question the conduct of a professional in his area of expertise") (punctuation omitted). Specifically, Newell's claim is based upon JJ&G's alleged breach of its contractual obligation to provide professional services, by failing to perform such services "in accordance with the professional [standard] of care." Id. See also Mauldin v. Sheffer(fn6) (a claim for engineering malpractice may be brought as either a tort or contract claim).
Under Georgia law, all "malpractice claim[s] sounding in contract [are] governed by the four-year statute of limitation [found] in OCGA § 9-3-25." Harrison v. Beckham.(fn7) See also Consolidated Management Servs. v. Halligan(fn8) ("[a] breach of duty of professional competence falls within the four-year statute of limitation as set forth in OCGA § 9-3-25"). Contrary to the trial court's ruling, Georgia's courts have never limited this holding to cases involving claims of legal malpractice. See Brock v. Allen(fn9) (OCGA § 9-3-25 applies to a malpractice claim against an exterminator); Landmark Eng'g v. Cooper(fn10) (applying the four year statute of limitation to a professional malpractice claim against an engineering firm); Consolidated Management Servs., supra, 186 Ga. App. at 622 (1) (holding that a four-year statute of limitation applies to claims for accounting malpractice).
Despite this precedent, Newell argues that because its professional malpractice claim is based upon a written contract, the six-year limitation period found in OCGA § 9-3-24 should apply. In support of its position, Newell points out that OCGA § 9-3-25 applies to claims asserting a breach of "any implied promise or undertaking," oral contracts, or contracts that are partly in writing and party in parol. See OCGA § 9-3-25; Plumlee v. Davis.(fn11) This argument, however, ignores those cases explicitly holding that OCGA § 9-3-25 applies even to those professional malpractice claims premised on the breach of a written contract for professional services. See, e.g., Old Republic Nat'l Title Ins. Co. v. Atty. Title Servs.;(fn12) Plumlee, supra, 221 Ga. App. at 853 (3). As those cases explained, the four-year statute applies to such claims because the contractual duty allegedly breached is not one specified within the written contract itself. Rather, that obligation is imposed by law and therefore implied in the parties' contract. Old Republic, slip opinion at 8 (1); Plumlee, 221 Ga. App. at 852 (3). See also Hamilton v. Powell, Goldstein, Frazer & Murphy(fn13) ("[t]he law imposes upon . . . professional[s] . . . performing medical, architectural, engineering, and . . . other [professional] services, pursuant to their contracts made with their clients, an obligation" to perform such services in accordance with the applicable standard of care) (punctuation omitted). Newell's claim demonstrates the soundness of this reasoning. Although based on a written contract, Newell's claim of breach is not premised on an express contractual provision. Rather, it is based on JJ&G's breach of its legal obligation to perform the contracted-for services in conformity with the professional standard of care.
Nor do we find any merit in Newell's argument that Costrini v. Hansen Architects,(fn14) relied on by the trial court, requires us to apply a six-year statute of limitation in this case. In Costrini, this Court rejected a trial court's ruling that a claim for breach of a written construction contract was subject to the four-year statute of limitation applicable to tort claims for damage to property (OCGA § 9-3-30), and held that such a claim was governed by the six-year statute applicable to claims for breach of a written contract. We therefore affirmed the trial court's grant of summary judgment in favor of the defendants, finding that the plaintiffs had failed to file suit within six years after the construction work was substantially completed. Id. at 137 (1). Although the defendant in Costrini was an architect, there is nothing in the opinion that suggests the plaintiffs had sued him in his capacity as an architect, for professional malpractice. Specifically, there was no indication that the plaintiffs' claim was based on the parties' contract for the defendant's professional, architectural services, or his failure to perform such professional services in accordance with the applicable standard of care. Rather, it appears that plaintiffs had sued the defendant in his capacity as a general contractor, for ordinary negligence and fraud.
Because Newell's breach of contract claim is premised on a written contract for professional services and "calls into question the conduct of . . . professional[s] in [their] area of expertise[,]" it is a claim for professional malpractice ((punctuation omitted) Baskette v. Atlanta Center for Reproductive Medicine, LLC(fn15)), and the four-year statute of limitation applies. Old Republic, supra, slip op. at 7-8 (1). The statute of limitation began to run on Newell's claim, at the latest, in September 1999, when all engineering work on the project was completed. See, e.g., Jones, Day, Reavis & Pogue v. American Envirecycle, Inc.(fn16) ("a breach of contract would occur upon the commission of the wrongful act violating the contractual duty"). Accordingly, because it did not file suit until August 2004, Newell's claim is time-barred. We therefore reverse the order of the trial court denying JJ&G's motion for summary judgment.
Judgment reversed.
Adams and Doyle, JJ., concur.Burnside Wall Attorneys at Law are Augusta GA personal injury lawyers and car accident attorneys. We represent injury victims in dog bite, car and truck wreck cases, medical malpractice, scarring injury, and spinal cord injury cases.
We offer a free initial consultation to all prospective clients.
Augusta Car Wreck Lawyer, Truck Accident Attorney, Augusta Personal Injury Lawyer
