Benton Bros. Ford Co., Inc. v. Cotton States Mut. Ins. Co.

• Decision Date: 30 January 1981
• Docket Number: No. 60357,60357
• Citation: 157 Ga.App. 448,278 S.E.2d 40
• Parties: BENTON BROTHERS FORD COMPANY, INC. v. COTTON STATES MUTUAL INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 40

278 S.E.2d 40

157 Ga.App. 448

BENTON BROTHERS FORD COMPANY, INC. v. COTTON STATES MUTUAL INSURANCE COMPANY.

No. 60357.

Court of Appeals of Georgia.

Jan. 30, 1981.

Rehearing Denied Feb. 11, 1981.

James D. Hudson, Ocilla, for appellant.

E. Wycliffe Orr, Gainesville, for appellee.

POPE, Judge.

Appellant filed its complaint against appellee insurance company (hereinafter "Cotton States") seeking recovery under its insurance policy with Cotton States for damages caused by an automobile crashing into the interior of appellant's automobile dealership building. Following discovery, Cotton States filed a motion for summary judgment contending that the damages sought by appellant were excluded from coverage under the policy. Appellant brings this appeal from the grant of that motion and enumerates as error the trial court's consideration of certain documents filed by Cotton States on the day of the hearing and the existence of material issues of fact remaining in dispute. We reverse.

1. On the day of the hearing on its motion for summary judgment, Cotton States made a "filing for record" consisting of certain documentary evidence, writings and agreements which had been given to Cotton States by appellant in response to a motion to produce. Appellant objected to the trial court's consideration of this material on the motion for summary judgment because the material had not been "served at least 30 days before the time fixed for the hearing." CPA § 56(c) (Code Ann. § 81A-156(c)). Cotton States argued that this material was not an affidavit and that since this material was supplied in response to the notice to produce, appellant could not be "surprised" by it.

CPA § 56(c) states that a summary judgment may be granted on the basis of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ..." Those forms of evidence, however, are not the exclusive means of presenting evidence on a motion for summary judgment. 10 Wright & Miller, Federal Practice and Procedure: Civil §§ 2721-2724. See Jackson v. Couch Funeral Home, 131 Ga.App. 695, 206 S.E.2d 718 (1974). The trial court may consider any material which would be admissible or usable at trial. 10 Wright & Miller, supra. See, e. g., Area v. Cagle, 148 Ga.App. 769(2), 252 S.E.2d 655 (1979); Price v. Star Service &c. Corp., 119 Ga.App. 171(3), 166 S.E.2d 593 (1969). Therefore, assuming it was otherwise admissible, the material filed by Cotton States was of the type which could properly be considered by the trial court on a motion for summary judgment.

Nevertheless, since Cotton States elected to rely on this material in support of its motion but neither filed it 30 days prior to the hearing nor requested an enlargement of time within which to make such a filing (CPA § 6(b), Code Ann. § 81A-106(b)), the trial court erred in considering this material in support of the motion for summary judgment. Accord, Jones v. Howard, 153 Ga.App. 137(1), 264 S.E.2d 587 (1980); Wall v. C. & S. Bank, 145 Ga.App. 76(2), 243 S.E.2d 271 (1978). We view the purpose of the 30-day waiting period required by CPA § 56(c) as placing the opposing party on notice as to the material relied upon by the movant in support of his motion so that he might have sufficient opportunity to prepare his response. Vann v. Bice, 127 Ga.App. 579, 194 S.E.2d 259 (1972). Although the material filed by Cotton States on the day of the hearing had been supplied by appellant, the trial court's consideration of that material denied appellant sufficient opportunity to prepare a response thereto as envisioned by the statute.

2. Furthermore, even assuming the material filed on the day of the hearing was properly before the trial court, the granting of Cotton States' motion for summary judgment was not authorized under the circumstances in this case. The record discloses that the loss occurred on September 11, 1978 when an occasional employee of appellant sought to move a new 1979 Ford automobile and crashed into a steel post which supported part of the building; the employee was not authorized to drive this or any vehicle at appellant's place of business. Cotton States denied that the loss in question was covered under its policy and relied upon the language in the policy which provided that the insurer "shall not be liable as respects (loss resulting from actual physical contact of ... a vehicle with the property covered hereunder) for loss ... by any vehicle owned or operated by the insured or by any occupant of the described premises ..."

In support of its motion for summary judgment, Cotton States showed that appellant's president had stated that the automobile involved in the crash was "owned" by the appellant and that appellant's secretary-treasurer stated that "he could see that the loss in question was not covered under (the) policy." The material...