International Indemnity Co. v. Saia Motor Freight Line, Inc. , 223 Ga. App. 544 ( 1996 )

478 S.E.2d 776 (1996) 223 Ga. App. 544

INTERNATIONAL INDEMNITY COMPANY
v.
SAIA MOTOR FREIGHT LINE, INC.

No. A96A1254.

Court of Appeals of Georgia.

November 14, 1996.

James B. Gurley, Atlanta, for appellant.

Duncan & Mangiafico, George E. Duncan, Jr., Leslie P. Becknell, Atlanta, for appellee.

BLACKBURN, Judge.

International Indemnity Company (International) appeals the trial court's grant of summary judgment and award of $22,708.37 in defense costs to Saia Motor Freight Line, Inc. (Saia). International also appeals the grant of Saia's motion to compel discovery in connection with its bad faith refusal to defend claim.

International's insured, Gary K. Burleson, was involved in a tractor-trailer collision while driving a truck he had leased from Saia. Burleson had named Saia as an additional insured on his policy with International. Saia was also insured by National Union Fire Insurance Company of Pittsburgh, Pennsylvania (National Union). After David Nesbit, the driver of the other truck involved in the collision, filed suit against Burleson, Saia, and National Union, Saia demanded International defend the action. International refused and Saia filed a third-party complaint against International.

In an unpublished opinion, this court affirmed the trial court's grant of partial summary judgment, holding that National Union was an excess carrier and that International was the primary insurer and had a duty to defend Saia in the tort action. The amount of defense costs and disposition of Saia's bad faith claim were reserved for later determination. Intl. Indem. Corp. v. Saia Motor Freight Line, Case No. A94A2029, decided Feb. 1, 1995, cert. denied, May 5, 1995.^[1] Accordingly, International was responsible for Saia's defense and its associated costs. See Ga. Mut. Ins. Co. v. Rollins, Inc., 209 Ga.App. 744, 746-747(2), 434 S.E.2d 581 (1993); see also Commercial Union Ins. Co. v. Ins. Co. of North America, 155 Ga.App. 786, 790(3), 273 S.E.2d 24 (1980) (primary insurer has primary duty to defend). International now contests the amount of the defense costs awarded by the trial court following our opinion and the court's orders requiring it to produce certain documents which Saia requested through discovery in the prosecution of its bad faith claim.

1. International first argues that Saia was not entitled to defense costs because it did not demand a defense from International until approximately one year after the tort action had been filed. International also argues that the award of defense costs should not include any amount for the period that Saia conducted its own defense prior to making demand upon International.^[2]

This enumeration is without merit, and involves the same coverage issue which this Court has already decided against International. With respect to International's argument that Saia did not demand a defense until June 16, 1993, just before Saia filed its third-party complaint, the uncontroverted evidence shows that Saia made demand on International over a year earlier, in an April 22, 1992, letter. International does not contest that it received this letter, or that it refused to defend the suit. It was only after International's refusal that Saia undertook to defend the lawsuit on July 22, 1992. The third-party complaint was filed almost a year later, on July 30, 1993.

2. International also argues that the $22,708.37 award of defense costs to Saia was erroneous because it includes the defense costs of defendant National Union. Contending that it has no duty to pay National Union's defense costs, International argues that the pleadings in this case show that Saia is wrongfully attempting to recover National Union's defense costs.

The evidence, including the affidavit of Saia's attorney, supports the award of defense costs. International has the burden of showing what portion of the $22,708.37 award was allegedly improperly attributed to National Union's defense and of refuting the evidence of record. See Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). International has failed to cite any evidence, and the trial court did not err in the award of defense costs.

3. International further appeals an adverse ruling on several discovery issues. Following oral argument, the trial court granted Saia's motion to compel discovery, and ordered International to produce its entire claims file. It also ordered International to produce all bills submitted to it by Lane, O'Brien, Caswell & Taylor (Lane), the law firm which defended the truck driver, International's insured. Finally, the trial court ordered International to direct Allclaims, Inc., the investigator of the tractor-trailer accident for International, to produce all the documents that had been previously sought by Saia.

On the issue of producing its entire claims file, International argues that "a party cannot be compelled to produce an `entire file,'" and it also claims that the file contains attorney/client privileged information. International's argument ignores the fact that the trial court's order specifically excludes from production all correspondence between International and its counsel, and is groundless. With respect to International's "entire file" argument, the Civil Practice Act grants judges broad discretion in determining discovery issues, and this Court will "`refuse to interfere with a trial court's exercise of its discretion in absence of abuse....' [Cit.]" Kemira, Inc. v. Amory, 210 Ga.App. 48, 51-52(1), 435 S.E.2d 236 (1993). "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." OCGA § 9-11-26(b)(1). The only privilege asserted by International was the improperly argued attorney/client privilege, and the trial court's order disposes of that objection. International does not contest the relevancy of the material requested, and it cites no authority for its argument that a party cannot be made to produce its entire file. International has shown no abuse by the trial court of its exercise of discretion on this issue.

International enumerates as error the order to produce the fee bills submitted to it for payment by the Lane firm. Saia's sole reason for requesting these documents was to show that the sums expended for its own defense in the tort action were reasonable for the services rendered. International asserts that it does not contest the reasonableness of the defense costs awarded, and thus to require the production of the bills is error. International's argument is inconsistent with its position that the sum awarded included costs for National Union, which necessarily raises the issue of the reasonableness of Saia's attorney fees. While this appeal may render moot the basis for the production of the subject bills, International has shown no error by the trial court in ordering their production.

Finally, the trial court ordered International "to direct Allclaims, Inc. to produce all documents requested by Saia." Allclaims, as agent for International, investigated the tractor-trailer collision on behalf of International. Saia filed a third-party document request on Allclaims. International filed an objection to this third-party request, and Allclaims itself never responded to Saia's request. Saia filed a motion to compel only against International.

Normally, a motion to compel is filed directly against the party from whom discovery was sought. See OCGA § 9-11-34(c)(1). However, as the oral argument on the motion to compel is not contained in the record, and Allclaims acted as an agent of International, "[i]n the absence of a transcript, we must assume that the trial court's findings were supported by the evidence." (Citation and punctuation omitted.) Dept. of Human Resources v. Cowan, 220 Ga.App. 230, 232(2), 469 S.E.2d 384 (1996). Accordingly, we cannot say that the trial court abused its discretion on this issue.

4. Saia requests the imposition of sanctions against International pursuant to OCGA § 5-6-6, citing International's failure to support its arguments with authority, its misrepresentations to this Court of record evidence, its attempt to relitigate issues already decided in the previous appeal, and the complete lack of evidence submitted in opposition to Saia's motion for summary judgment. Saia also asserts the instant appeal was filed only for purposes of delay.

This matter is precisely the type of appeal OCGA § 5-6-6 was designed to address. Based on our earlier judgment, International's often groundless argument, and the record in the present case, there was no valid reason for International to anticipate reversal of the trial court's judgment. See Cunningham v. Tara State Bank, 212 Ga.App. 470, 471, 442 S.E.2d 18 (1994); see also Ray v. Standard Fire Ins. Co., etc., 168 Ga.App. 116, 118(4), 308 S.E.2d 221 (1983) (sanctions merited when appellant "knew or should have known that, under a careful reading of the facts and the relevant law, [its] appeal was ill-founded"). Accordingly, Saia's motion for sanctions pursuant to OCGA § 5-6-6 is granted, and the trial court is hereby directed to impose a ten percent penalty of $2,270.84 against International and to add said amount to Saia's judgment upon receipt of the remittitur in this action.

Judgment affirmed.

BEASLEY, C.J., and BIRDSONG, P.J., concur.

APPENDIX

NOT TO BE OFFICIALLY REPORTED

INTERNATIONAL INDEMNITY CORP. v. SAIA MOTOR FREIGHT LINE, INC., et al.

No. A94A2029.

Feb. 1, 1995.

BEASLEY, Chief Judge.

The International Indemnity Company ("International") appeals from the court's order denying its motion for summary judgment and granting partial summary judgment to Saia and National Union Fire Insurance Company. The sole question resolved in that order was whether International or National Union was to be considered primary insurer and responsible for providing defense for Saia; the amount of defense costs was reserved for later determination and Saia's claim of bad faith refusal was left for a jury.

This case arose out of an accident involving a driver named Nesbit who collided with a truck driven by Burleson and titled to Saia. Burleson was operating the truck within Georgia under a lease-purchase arrangement with Saia that required him to carry insurance. International contends he was an employee and Saia claims he was an independent contractor. Saia was required under state and federal regulations to carry blanket insurance, which it did through a policy and self-insurance arrangement with National Union. Burleson had acquired his insurance with International through an agent recommended by Saia. Although Saia required insurance and recommended the agent, the only evidence on this point shows that Saia did nothing more and Burleson was apparently free to use any agent or insurer.

Saia and National Union contend that the specific policy covering the vehicle establishes that International is the primary insurer under Georgia's "insurance follows the car" rule. In a variety of enumerations, International contends that the National Union policy is primary, either through some allegation of fraud or through an argument that Saia's policy obtained pursuant to regulation is primary under all circumstances, regardless of other insurance.

In its nine-page order, the court thoroughly and correctly addressed the issues presented. Our decision is unpublished because the law here is clear and addressing the enumerations in the manner put forth by International, as this court does in published opinions, would reduce any precedential value of a published opinion.

There is no reading of the International policy that does not provide primary coverage for Saia. The policy uses the term "you" to mean the insured listed on the declarations page. The declarations shows Burleson listed as insured and shows a notation of "additional insured," later specified as Saia. In fact, the inclusion of Saia as an additional insured was for the additional consideration of $63. Even if Saia had not been named an insured and, as International insists, Burleson was an employee of Saia, International still agreed to extend primary coverage to Saia in these circumstances. The policy defines "insured" to include "[a]nyone liable for the conduct of [Burleson]...." We have consistently held that such clauses provide primary coverage to employers in respondeat superior situations. Aetna, etc., Co. v. Empire Fire, etc., Ins. Co., 212 Ga.App. 642, 643-644(1)(a), 442 S.E.2d 778 (1994); Ga. Mut. Ins. Co. v. Rollins, Inc., 209 Ga.App. 744, 745(1), 434 S.E.2d 581 (1993). Both these cases are applications of the principles of Zurich Ins. Co. v. New Amsterdam Cas. Co., 117 Ga.App. 426, 160 S.E.2d 603 (1968), upon which the trial court properly relied.

International contends the court misconstrued the policy provision providing primary insurance "for any covered auto you own." As the court properly noted, Saia is covered under the policy's definition of "you" by virtue of its designation as an additional insured. The court also properly interpreted the undefined term "you own" to include Burleson's leasing of the truck. As Saia points out, an interpretation of "you own" that excludes any leasing arrangement would mean that this standard policy would not provide primary coverage when a driver was leasing his vehicle, a common occurrence. The court did not misconstrue the policy and International advances no evidence or authority to defeat its clear operation. International wishes to concentrate attention on who actually "owned" the truck at the time of the accident, but that does not control the issue. International agreed to provide primary coverage on the specific vehicle for the protection of both Burleson and Saia.

International also alleges it was fraudulently induced to provide coverage, but does not point to any evidence of misrepresentation. The application for insurance clearly shows Burleson's disclosure of his lease arrangement with Saia, and that Saia should be an additional named insured. On the application, Burleson is designated as "applicant" and "driver"; the only item that could be considered a representation that he owned the truck was his response of "1" to the question of "what is the total # of vehicles owned by the Applicant?" Neither the application nor the policy defines "owns" or "owner" and it cannot be assumed that the terms exclude a lease purchaser such as Burleson.

International's contentions about Burleson's statement on the insurance application that he was not subject to the Motor Carriers Act and no PSC or ICC filings were required presents no issue of misrepresentation. Even if the statements were false, International representative's averment that International would not have issued a policy had it known it would be exposed to liability under PSC or ICC regulations presents no issue of reliance; the liability of Burleson, Saia, and International does not arise from any such regulation but from normal tort and insurance law. International was fully aware it was extending coverage to Saia, located in Louisiana.

International attempts to use the blanket coverage required by PSC and ICC regulation to avoid its liability under the policy specific to this truck. The regulation does not prevent a policy such as International issued. As noted by the court, the purpose of the regulation is not to protect an insurer of a specific vehicle but to protect the public as a whole. OCGA § 46-7-12(a); Carolina Cas. Ins. Co. v. Underwriters Ins. Co., 569 F.2d 304, 312-313 (5th Cir.1978). International points to no authority for the proposition that Saia's insurance procured pursuant to ICC or PSC regulation is necessarily to be used as primary in any and all instances. In fact, that is the argument specifically rejected by the Fifth Circuit in Carolina Cas. Ins. Co. v. Underwriters Ins. Co., supra.

This case is substantially the same as Ga. Mut. Ins. Co. v. Rollins, Inc., supra at 746-747(2), 434 S.E.2d 581. As in that case, there are two insurers, one specific to the car and one general to the business, with the business taking a self-insured retention. As in that case, as between the two insurers, International's specific policy is primary and National Union's excess.

International also seems to contend that the self-insurance retention agreement between Saia (and its parent company) and National Union is outside the policy and not included in Saia's ICC and PSC filings, and therefore ineffective. Although neither party points to evidence showing whether the PSC filings include any approved self-insurance plan under OCGA § 46-7-12(d), the PSC filing does not matter. The purpose of the regulation is the protection of the public. Progressive Cas. Ins. Co. v. Bryant, 205 Ga. App. 164, 421 S.E.2d 329 (1992). That public policy is upheld here; there has never been any question whether driver Nesbit is protected by primary insurance. The only question addressed here is which insurer is first responsible for defense costs; that is controlled by Ga. Mut. Ins. Co. v. Rollins, Inc., supra, and by International's agreement to extend protection to Saia.

The court's order is correct and explains the issues. International's obligations are controlled by its policy.

Judgment affirmed.

ANDREWS and JOHNSON, JJ., concur.

NOTES

[1] This opinion is set out in its entirety following the majority.

[2] In its enumerations of error, International asserted two separate errors in a single enumeration in violation of the rules of this court. All of International's enumerations have been considered, even though such consideration was not required under the rules of this court. "When an appellant asserts more than one error within a single enumeration this court may, in its discretion, review none, one or both of the errors asserted." Dept. of Transp. v. 2.953 Acres of Land, 219 Ga.App. 45, 46, 463 S.E.2d 912 (1995).