Bowling v. Gober
| Decision Date | 29 October 1992 |
| Docket Number | No. A92A1376,A92A1376 |
| Citation | 206 Ga.App. 38,424 S.E.2d 335 |
| Parties | BOWLING et al. v. GOBER. |
| Court | Georgia Court of Appeals |
Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., Sidney P. Wright, Long, Weinberg, Ansley & Wheeler, Ronald R. Coleman, Jr., Atlanta, for appellants.
Butler, Wooten, Overby & Cheeley, Robert D. Cheeley, Patrick A. Dawson, Neely & Player, Ronald D. Reemsnyder, Andrew C. Ausband, Cashin & Morton, John C. Porter, Jr., Dennis, Corry, Porter & Thornton, R. Clay Porter, Robert G. Ballard, Atlanta, for appellee.
This is an interlocutory review of the state court's order denying the motion for summary judgment of appellant Hooters of Memorial Drive, Inc. (Hooters).
Appellee leased a car for his daughter's use. A truck driven by appellant/defendant Mark Alan Bowling crossed the highway centerline colliding with the leased car. Bowling had allegedly been drinking at Hooters. Thereafter, appellee filed suit against appellants for property damage to the vehicle. His amended complaint contains a prayer for recovery of compensatory damages for the full value of the automobile and for associated punitive damages, litigation expenses, and attorney fees.
Before filing the lawsuit, appellee received a settlement check from appellant Bowling's insurance company (Allstate) for $4,687.50 for the property damage to the leased vehicle. The check was payable jointly to Bowling and the vehicle lessor. Appellee attests that, although this payment was accepted from the insurance company, he executed no release of any claim against any party because of the collision, executed no covenant not to sue, and did not accept a settlement offer from either appellant Bowling or appellant Hooters. Appellee further attests he was not fully compensated for vehicle damages, as he had to pay an additional $230.70 out-of-pocket expense to the lessor in addition to endorsing the joint check for $4,687.50 to lessor. This evidence of record is uncontroverted.
The record reflects that the Allstate appraiser calculated his "initial valuation of the car" as $6,250, and after deducting the salvage value of $1,562.50, pursuant to appellee's request that he be allowed to keep the wreckage as evidence in a forthcoming lawsuit, tendered appellee the $4,687.50 check. A "Total Loss and Salvage Report," attached as an exhibit to the appraiser's affidavit, reflects that the initial appraisal amount was determined by taking an average retail figure of $6,025, deducting $250 as mileage factor, leaving a net of $5,775 to which $475 was added for vehicle accessories, thereby resulting in a valuation of $6,250. A $60 car condition deduction apparently was waived following negotiations with appellee. This same report reveals in paragraph 2 that the estimated salvage value of the vehicle is either $350 or $250; however, a "Diary Activity" entry on the same form reflects that appellee was informed that an amount equal to 25 percent of the appraised value of the vehicle (25 percent of $6,250) normally was received for salvage. Thus, appellant Bowling was offered and accepted the sum of $4,687.50. It is uncontroverted that the collision damage resulted in the car being declared a total loss; the vehicle was "totaled."
The trial court converted Hooters' motion to dismiss into a motion for summary judgment, and denied the motion. Held:
1. Examination of both the original and the amended complaint of appellee reveals a lack of compliance with the notice requirement of the CPA regarding any alleged tortious interference of contract (see generally OCGA §§ 9-2-3, 51-1-1, 51-1-6, 51-1-8; compare Union Camp Corp. v. Southern Bulk Indus., 193 Ga.App. 90 386 S.E.2d 866 with City of Albany v. Oxford Constr. Co., 221 Ga. 872, 148 S.E.2d 324) by destruction of appellee's right to exercise an option to purchase at the conclusion of the lease. At the time of the trial court's order denying summary judgment, subject complaint did not provide sufficient notice of such a tort within the meaning of Bazemore v. Burnet, 117 Ga.App. 849, 852, 161 S.E.2d 924. Accordingly, the trial court erred in basing, at least in part, the denial of summary judgment on any type of tortious interference with a contract right to exercise an option to purchase. Thus, we must determine whether genuine issues of material fact remained as to the claim of damage for tortious destruction of the car.
2. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga.App. 594, 595-596, 370 S.E.2d 843.
3. Appellants assert they have met their burden pursuant to Lau's Corp. v. Haskins, 261 Ga. 491, 495, 405 S.E.2d 474, thus requiring grant of summary judgment, because appellee obtained full satisfaction of his automobile damage claim from the insurance company. If full satisfaction has been obtained, the law will not allow double recovery. OCGA § 9-2-4; compare Overstreet v. Ga. Farm, etc., Ins. Co., 182 Ga.App. 415, 355 S.E.2d 744 (physical precedent only).
As a general rule "[r]ecovery for damages to an automobile may be based on the difference in the value before the injury and the value afterwards; alternatively, it may be based on the reasonable value of necessary repairs together with hire value of the vehicle while incapable of use and the value of permanent impairment, provided the aggregate amount of those items does not exceed the value of the automobile before the accident, with interest." Knight v. Stevens Logging, 173 Ga.App. 359, 360(1), 326 S.E.2d 494. Value for purposes of this rule means "fair market value." Battle v. Strother, 171 Ga.App. 418, 421(5), 319 S.E.2d 887; Southern Crate, etc., Co. v. McDowell, 163 Ga.App. 153, 155(3), 293 S.E.2d 541; Rutledge v. Glass, 125 Ga.App. 549, 550(2), 188 S.E.2d 261; Cobb & Eldridge, Ga.Law of Damages, Motor Vehicles, § 30-2, and cases cited at p. 524, n. 1. When a vehicle is destroyed to the extent that it cannot be repaired economically, the "fair market value" after the accident would be the salvage value, provided there exists evidence of physical damage to the vehicle sufficient to establish the vehicle was not so repairable. Cobb & Eldridge, supra at § 30-2, p. 523.
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