WILLIAM E. WOODRUM, JR. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY ( 2021 )

FIFTH DIVISION
MCFADDEN, C. J.,
RICKMAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
June 25, 2021
In the Court of Appeals of Georgia
A21A0320. WOODRUM, et al. v. GEORGIA FARM BUREAU
MUTUAL INSURANCE COMPANY.
RICKMAN, Presiding Judge.
In the second appearance of this case before our Court, William E. Woodrum,
Jr. and Kathy S. Woodrum appeal the trial court’s grant of summary judgment to
Georgia Farm Bureau Mutual Insurance Company on their breach of contract claim
in which they seek compensation for diminution in value. The Woodrums contend,
inter alia, that the trial court erred in granting summary judgment because genuine
issues of material fact remain as to whether diminution in value was assessed as part
of the appraisal process and included in the appraisal award. For reasons that follow,
we reverse.
“On appeal from the grant of summary judgment, this Court conducts a de novo
review of the evidence to determine whether there is a genuine issue of material fact
and whether the undisputed facts, viewed in the light most favorable to the
nonmoving party, warrant judgment as a matter of law.” (Citation and punctuation
omitted.) Cline v. Allstate Property & Cas. Ins., 354 Ga. App. 415, 415 (841 SE2d
63) (2020). In our prior appeal, we set out the facts in that light as well as the prior
procedural history:
[D]uring a thunderstorm on July 5, 2012, a large tree fell onto the roof
of William and Kathy Woodrum’s house, causing significant damage to
the house. The next day, the Woodrums reported the damage to their
insurer, Georgia Farm Bureau Mutual Insurance Company. On
November 7, 2012, after the Woodrums and Georgia Farm Bureau were
unable to agree upon the amount of the loss, the Woodrums invoked the
appraisal clause of the insurance policy. That clause provided:
If you[, the Woodrums,] and we[, Georgia Farm Bureau,] fail to agree
on the amount of loss, either may demand in writing an appraisal of the
loss. In this event, each party will choose a competent appraiser within
20 days after receiving a written request from the other. The two
appraisers will choose an umpire. If they cannot agree upon an umpire
within 15 days, you or we may request that the choice be made by a
judge of a court of record in the state where the residence premises is
located. The appraisers will separately set the amount of the loss. If the
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appraisers submit a written report of an agreement to us, the amount
agreed upon will be the amount of loss. If they fail to agree, they will
submit their differences to the umpire. A decision agreed to by any two
will set the amount of loss.
(Punctuation omitted.) On February 5, 2013, pursuant to the appraisal
process, an award was issued and agreed to by the Woodrums’ appraiser
and the appointed umpire. Georgia Farm Bureau made payment of the
award to the Woodrums.
The Woodrums subsequently brought suit against Georgia Farm Bureau,
seeking compensation for diminution in value. The complaint included
counts for breach of contract and breach of an implied duty of good faith
and fair dealing. The breach of contract claim was based on allegations
that the fallen tree had caused a crack in the slab foundation of the
house, that the value of the house was diminished by the cracked
foundation, that such diminished value was a covered loss under the
policy that was not included in the appraisal award, and that Georgia
Farm Bureau had failed to pay for that diminished value. In support of
the claim, the Woodrums filed the affidavit of George Hall, the
contractor who had repaired the Woodrums’ house and who opined that
the value of the house was diminished by the foundation being cracked.
During a subsequent deposition, Hall gave his opinion that the house
had lost 25 percent of its value due to the cracked foundation.
Georgia Farm Bureau filed a motion to exclude Hall as an expert witness
and a motion for summary judgment. On March 24, 2017, the trial court
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entered an order granting the motion to exclude Hall’s testimony as an
expert regarding the diminution in value of the Woodrums’ property. In
that same order, the trial court also excluded Hall’s testimony as a lay
witness giving an opinion as to value. On that same date, the trial court
issued a separate order granting the insurance company’s motion for
summary judgment on both of the Woodrums’ claims. As to the breach
of contract claim, the court found that without Hall’s excluded
testimony, there was no other evidence that the diminution in value of
the property was not included in the amount of loss determined under
the appraisal clause. As to the claim for breach of implied duty of good
faith and fair dealing, the court found that it could not be maintained
because there is no such independent cause of action apart from the
breach of contract claim, which had already been disposed of on
summary judgment.
Woodrum v. Georgia Farm Bureau Mut. Ins. Co., 347 Ga. App. 89, 89-90 (815 SE2d
650) (2018) (“Woodrum I”).
In Woodrum I, we held that the trial court abused its discretion in finding that
Hall could not offer his opinion of value as a lay witness and reversed the trial court’s
order excluding that testimony. Id. at 93-94 (1) (b). Based on that holding, we also
reversed the grant of summary judgment on the breach of contract claim because we
concluded that “there is, contrary to the trial court’s finding, some evidence creating
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a genuine issue of material fact as to the diminished value of the house.” Id. at 94 (2)
(a).
When the case returned to the trial court, Georgia Farm Bureau filed a renewed
motion for summary judgment based on the existing record. In that motion, Georgia
Farm Bureau asserted that the appraisal award constituted full and final payment of
the loss, including any diminution in value. The trial court granted the motion on that
ground, and the Woodrums appeal.
1. Initially, the Woodrums contend that the trial court violated Woodrum I,
which they argue implicitly directed the trial court that summary judgment was not
appropriate in this case.
Under the law of the case doctrine, “any ruling by the Supreme Court or the
Court of Appeals in a case shall be binding in all subsequent proceedings in that case
in the lower court and in the Supreme Court or the Court of Appeals as the case may
be.” OCGA § 9-11-60 (h). “But the doctrine applies only to actual decisions, not to
issues raised but never ruled upon.” (Citation and punctuation omitted.) Sovereign
Healthcare v. Mariner Health Care Mgmt., 329 Ga. App. 782, 785 (1) (a) (766 SE2d
172) (2014); see also Hicks v. McGee, 289 Ga. 573, 579 (2) (713 SE2d 841) (2011)
(law of the case rule does not encompass an “implied” ruling); Currid v. DeKalb State
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Court Probation Dept., 285 Ga. 184, 186, n.5 (674 SE2d 894) (2009) (rule does not
apply without an express ruling on the issue). In Woodrum I, we concluded that
summary judgment was not appropriate on the breach of contract claim because there
was some evidence of diminution in value, but we did not determine whether
diminution in value was assessed as part of the appraisal process. Thus, we did not
rule on the issue presented here, and the law of the case rule did not preclude the trial
court from addressing it. See Sovereign Healthcare, 329 Ga. App. at 785 (1) (a).
2. The Woodrums next contend that genuine issues of material fact remain as
to whether diminution in value was assessed as part of the appraisal process engaged
in by the parties.
Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, 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).
Thus, to prevail on a motion for summary judgment, the moving party
must demonstrate that there is no genuine issue of material fact so that
the party is entitled to judgment as a matter of law. A defendant may do
this by either presenting evidence negating an essential element of the
plaintiff’s claims or establishing from the record an absence of evidence
to support such claims.
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(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 623 (1) (a)
(697 SE2d 779) (2010).
It is undisputed that an appraisal award was issued for the amount of loss
described as “Coverage A-Dwelling,” and that the appraiser for the Woodrums and
the appointed umpire agreed to the award. The appraisal award included a figure for
“Amount of loss/Replacement Cost Value” and a figure for “Actual Cash Value,” but
did not itemize the amounts awarded any further or mention diminution in value.1
The issue of the amount of loss, including any potential diminution in value of
the property, can be settled by the appraisal process. See McGowan v. Progressive
Preferred Ins. Co., 281 Ga. 169, 171-172 (637 SE2d 27) (2006).2 And an award
issued as a result of that process is binding on the parties as to the amount of loss
1
We note that the question of whether diminution in value occurred here, even
after repairs had been made, is one of fact. The parties are bound by our previous
determination that there is at least some evidence creating a genuine issue of material
fact as to the diminished value of the house. See Woodrum, 347 Ga. App. at 94 (2)
(a); see also State Farm Mut. Auto. Ins. Co. v. Mabry, 274 Ga. 498, 505 (4) (556
SE2d 114) (2001) (measure of damages for diminution in value is “the difference
between pre-loss value and post-repair value”).
2
As Georgia Farm Bureau points out, “an appraisal clause can only resolve a
disputed issue of value. It cannot be invoked to resolve broader issues of liability.”
McGowan, 281 Ga. 169 at 172. Accordingly, to the extent that Georgia Farm Bureau
challenges its liability for loss associated with diminution in value, the appraisal
clause cannot be invoked to resolve that issue.
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unless the award is set aside. See Southern Gen. Ins. Co. v. Kent, 187 Ga. App. 496,
497 (1) (370 SE2d 663) (1988).
The appraisal award issued here does not indicate that any potential diminution
in value was assessed and although the Woodrums have not pointed to any
requirement that the appraisal award be itemized, see Bell v. Liberty Mut. Fire Ins.
Co., 319 Ga. App. 302, 305 (1) (a) (734 SE2d 894) (2012), we cannot assume that
this separate category of loss was included in the award without evidence to support
that assumption. Georgia Farm Bureau has not pointed to any evidence that the
appraisal award included damages for diminution in value or that diminution in value
was assessed during the appraisal process. Nor has our review of the record revealed
any such evidence. Accordingly, based on the existing record, the trial court erred in
granting summary judgment to Georgia Farm Bureau on the breach of contract claim
on the ground that the appraisal award constituted full and final payment of the loss,
including any diminution in value.3
3
To the extent that Georgia Farm Bureau contends that the Woodrums were
required to submit a separate claim for diminution in value, we note that if the policy
does not require the insured to assert a right to recover any particular element of
damage, “it stands to reason that the policy does not require a separate claim for
diminution in value.” Mabry, 274 Ga. at 508 (4).
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3. Finally, the Woodrums contend that if their breach of contract claim is
reinstated, it will support their breach of the implied duty of good faith and fair
dealing claim and that it would therefore be error to grant summary judgment on the
latter claim.
Although the trial court did not address this issue in its order, the court did
grant Georgia Farm Bureau’s renewed motion for summary judgment, which sought
summary judgment on the Woodrums’ claims for breach of contract and breach of the
implied duty of good faith and fair dealing. Accordingly, as stated in Woodrum I, the
trial court’s “grant of summary judgment as to the breach of implied duty claim,
premised on an erroneous grant of summary judgment on the breach of contract claim,
must also be reversed.” Woodrum, 347 Ga. App. at 95 (2) (b).
Judgment reversed. McFadden, C. J., and Senior Appellate Judge Herbert E.
Phipps concur.
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