Thomas Morrison v. Steve Kicklighter , 329 Ga. App. 630 ( 2014 )

SECOND DIVISION
ANDREWS, P. J.,
MCFADDEN and RAY, JJ.
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.
http://www.gaappeals.us/rules/
November 14, 2014
In the Court of Appeals of Georgia
A14A0945. MORRISON et al. v. KICKLIGHTER.
ANDREWS, Presiding Judge.
Charles, Suzette, and Thomas Morrison sued Steve Kicklighter to recover
property damage allegedly caused when Kicklighter negligently backed his vehicle
into the Morrisons’ parked truck. The Morrisons sought to recover the cost of
repairing damage to the truck, the diminished value of the repaired truck, and the cost
of a rental vehicle during the repairs. On the basis that these losses were covered by
a liability insurance policy on Kicklighter’s vehicle issued by State Farm Mutual
Automobile Insurance Company, the Morrisons also brought the action pursuant to
OCGA § 33-4-7 against State Farm (as an unnamed party) seeking to recover
penalties and attorney fees against State Farm for allegedly failing to make a good
faith effort to adjust and settle their pre-trial demand for payment of the covered
losses.1
Under OCGA § 33-4-7 (d),
The insurer shall be an unnamed party, not disclosed to the jury, until
there has been a verdict resulting in recovery equal to or in excess of the
claimant’s demand. If that occurs, the trial shall be recommenced in
order for the trier of fact to receive evidence to make a determination as
to whether bad faith existed in the handling or adjustment of the
attempted settlement of the claim or action in question.
The trial was not recommenced for the second phase under this provision to consider
the Morrisons’ bad faith claim against State Farm because the jury rendered a verdict
in favor of Kicklighter on the property damage claims, and the Morrisons recovered
nothing. The Morrisons appeal from the trial court’s denial of their motion for a new
trial. Because we conclude that the verdict lacks any evidentiary support and was
contrary to law, we reverse.
1. The Morrisons claim that there was no evidentiary basis for the verdict in
favor of Kicklighter, and that the trial court erred by denying their motion for a new
trial made on the general grounds. See OCGA §§ 5-5-20; 5-5-21.
1
The Morrisons withdrew their claim against State Farm for failing to act in
good faith to adjust and settle their claim for the diminished value of the repaired
truck.
2
On appeal from the trial court’s denial of a motion for a new trial on the general
grounds set forth in OCGA §§ 5-5-20 (verdict contrary to evidence and principles of
justice and equity) or 5-5-21 (verdict strongly against weight of evidence), the
appellate court has no discretion to grant a new trial on that ground; “we can only
review the evidence to determine if there is any evidence to support the verdict.”
Cook v. Huff, 274 Ga. 186, 186 (552 SE2d 83) (2001) (punctuation and citation
omitted); Drake v. State, 241 Ga. 583, 585 (247 SE2d 57) (1978).
The standard of appellate review of the denial of a motion for new trial
on the general grounds is essentially the same as that applicable to the
denial of a motion for directed verdict or judgment n.o.v. The appellate
courts can only set a verdict aside, on evidentiary grounds, as being
contrary to law in that it lacks any evidence by which it could be
supported.
Cook, 274 Ga. at 186 (punctuation and citations omitted).
Kicklighter admitted liability for damages caused when he negligently backed
his vehicle into the Morrisons’ parked truck, and the only issue in the first phase of
the trial was the Morrisons’ claims for amounts due on three elements of damage: (1)
the cost of repairing the truck, (2) the diminished value of the repaired truck, and (3)
the cost of a rental vehicle during the repairs. The Morrisons presented evidence
establishing the dollar amounts they claimed were incurred on each of the three
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elements of damage. In response, Kicklighter’s defense was not that the Morrisons
incurred no damage as a result of his negligence; rather, he presented evidence of
lesser dollar amounts of damage incurred by the Morrisons on each of the three
elements. Because the undisputed evidence showed that Kicklighter negligently
caused the Morrisons to incur damages in some amount, there was no evidentiary
support for the jury’s verdict in favor of Kicklighter, and the verdict was contrary to
law and must be set aside. The trial court erred by denying the motion for a new trial.
2. We address additional enumerations of error on issues likely to recur in the
event of a retrial.
(a) In support of their repair costs, the Morrisons presented testimony from the
manager of the automobile collision repair shop where the truck was repaired
identifying published industry standards for collision repair, automobile manufacturer
repair standards, and paint manufacturer standards, and stating that the repair work
complied with the standards. The trial court refused to admit the standards as
documentary evidence and sustained Kicklighter’s objection that the documents
contained hearsay. Where identified and explained by expert testimony, industry
standards relied upon by persons in the witness’s particular occupation are
admissible, and are not excluded by the hearsay rule. Dayoub v. Yates-Astro Termite
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Pest Control Co., 239 Ga. App. 578, 581-582 (521 SE2d 600) (1999); OCGA § 24-8-
803 (17). The trial court erred by sustaining the hearsay objection.
(b) Where a repair shop employee testified that she had no personal knowledge
of actual repairs done to the truck, the trial court did not err by sustaining
Kicklighter’s hearsay objection and refusing to allow the employee to testify that
specific repairs to the truck were reasonable or necessary.
(c) To show that the diminished value of the repaired truck was less than the
amount claimed by the Morrisons, Kicklighter produced testimony from a witness (a
State Farm employee) as to diminished value damages. The Morrisons claim that the
trial court erred by overruling their objection that the witness was not qualified to
give an expert opinion on diminished value. The record shows that, before
Kicklighter called this witness as part of his defense case, the Morrisons called the
same witness for purpose of cross-examination in their case-in-chief. At that time,
counsel for the Morrisons cross-examined the witness about his opinion on
diminished value damages. The trial court did not err by finding that the Morrisons
opened the door to this testimony and overruling the objection.
(d) The Morrisons claim that the trial court erred by denying their pre-trial
motion in limine which sought a ruling from the court permitting them to cross-
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examine certain witnesses expected to be called by Kicklighter – a State Farm claims
adjuster and a State Farm damage estimator – about their employment with State
Farm. The Morrisons’ motion sought permission to cross-examine the witnesses
about their employment with State Farm for the purpose of impeaching their
credibility and showing they were biased toward finding lower repair costs to advance
State Farm’s interest in avoiding payment on the claim covered by Kicklighter’s State
Farm insurance policy. The trial court denied the motion ruling that “the Court will
not instruct the [Morrisons] on how to refer to [State Farm’s] employees other than
to order that the existence of insurance shall not be revealed to the jury during the
first phase of the trial,” and that “the parties shall not disclose the existence of
[Kicklighter’s] liability insurance coverage to the jury during the first phase of the
trial.” The court’s order further stated that, without revealing the existence of
Kicklighter’s liability insurance, the Morrisons remained free to cross-examine the
witnesses for bias by other means including, for example, questioning the witnesses
regarding how many vehicles they evaluate for collision damages each year, how they
are compensated, how many times they have testified for the party not at fault versus
at fault in a collision, and any prior dealings with the collision repair shop selected
by the Morrisons.
6
The witnesses referred to in the motion were called by Kicklighter during the
trial to give testimony in support of his defense on the damages at issue, and the
Morrisons claim that the court’s order on the motion in limine erroneously restricted
their right to a thorough and sifting cross-examination under OCGA § 24-6-611 (b).
We find no error. Under the procedures set forth in OCGA § 33-4-7 (d), before the
jury considers a third-party claimant’s action to recover bad faith penalties and
attorney fees against a liability insurer for the insurer’s failure to make a good faith
effort to adjust and settle an automobile property damage claim, the jury must first
return a verdict on the property damage claim equal to or greater than the claimant’s
demand for settlement. Although the insurer is served with the claimant’s complaint
filed against the insured tortfeasor, “[t]he insurer shall be an unnamed party, not
disclosed to the jury, until there has been a verdict resulting in recovery equal to or
in excess of the claimant’s demand.” OCGA § 33-4-7 (d). At that point, the trial is
recommenced for a second phase (with the insurer as the named defendant in place
of the insured) for the jury to consider the bad faith claim against the insurer. During
the first phase of the trial, the jury renders a verdict on the claim against the insured
tortfeasor, and the procedures in subsection (d) make clear that the existence of
liability insurance coverage is not relevant.
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The rule that the plaintiff be allowed the right of a thorough and sifting
cross examination must be balanced against the rule that irrelevant
matters of insurance coverage should be excluded from evidence. In the
interest of justice, the matter of insurance which is not a germane issue,
should be kept out.
Southeast Transport Corp. v. Hogan Livestock Co., 133 Ga. App. 825, 830 (212 SE2d
638) (1975). Under the circumstances, the trial court did not abuse its discretion by
denying the motion in limine and limiting the scope of cross-examination. McClellan
v. Evans, 294 Ga. App. 595, 596-597 (669 SE2d 554) (2008); Vol Repairs II, Inc. v.
Knighten, 322 Ga. App. 416, 420-421 (745 SE2d 673) (2013).
Judgment reversed. McFadden, J., concurs. Ray, J., concurs in Divisions 1
and 2 (a-c), and in the judgment.
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