Carden v. Burckhalter

• Decision Date: 22 August 1994
• Docket Number: No. A94A1785,A94A1785
• Citation: Carden v. Burckhalter, 448 S.E.2d 251, 214 Ga.App. 487 (Ga. App. 1994)
• Parties: CARDEN v. BURCKHALTER et al.
• Court: Georgia Court of Appeals

Page 251

448 S.E.2d 251

214 Ga.App. 487

CARDEN v.BURCKHALTER et al.

No. A94A1785.

Court of Appeals of Georgia.

Aug. 22, 1994.

Fain, Major & Wiley, Charles A. Wiley, Jr., and David W. Williams, Atlanta, for appellant.

Foster & Foster, Larry A. Foster, Jonesboro, and John A. Kimbell, Morrow, for appellees.

BIRDSONG, Presiding Judge.

Windel Carden filed this action seeking contribution against alleged joint tortfeasors Georgia Power Company("Georgia Power") and its driver Lenwood Burckhalter, for injuries to Ricky Barnes.In January 1990, Carden's vehicle collided with Burckhalter's Georgia Power truck and Burckhalter's truck then collided with Ricky Barnes.In February 1990, Carden's insurer, Georgia Farm Bureau Insurance Company("Farm Bureau") issued checks for $2,303.28 and $399 in property damage to Georgia Power and A1 Body and Frame Shop; Carden did not give written consent to the settlement agreement between his insurer Farm Bureau and Georgia Power.Ricky Barnes then sued Carden, Burckhalter and Georgia Power.In November 1992, Carden's insurer, Farm Bureau, paid Ricky Barnes $25,000 for bodily injury.However, Carden says Farm Bureau never consulted him about this settlement or notified Georgia Power of his lack of consent to it.

In this suit, Carden asserts that Burckhalter's negligence caused their collision and also caused Burckhalter's collision with Ricky Barnes.Carden contends Georgia Power and Burckhalter are jointly and severally liable for a contribution of one-half of the $25,000 paid by Farm Bureau to Ricky Barnes.Carden filed a motion in limine to exclude evidence of Farm Bureau's property settlement to Georgia Power; he conceded that this suit is filed under Farm Bureau's rights of subrogation in his policy to recover amounts paid on his behalf, because he"has a responsibility to cooperate in collecting the money paid" and "to seek recovery from the joint tortfeasors under the policy contract."He asserted that by paying the property settlement to Georgia Power, his insurer Farm Bureau acted as an independent contractor (seeOCGA § 33-7-12); thus, its property damage settlement with Georgia Power without his written consent does not preclude his claim for contribution from Georgia Power of money paid by Farm Bureau to Ricky Barnes and should not be admitted in evidence in this suit.The trial court denied Carden's motion in limine.

At trial Georgia Power and Burckhalter moved to dismiss this suit on grounds of accord and satisfaction, contending that Farm Bureau's payment of Georgia Power's property damage amounts to an admission that Carden was at fault.After presentation of evidence, the trial court ruled: "This is not a case for contribution....By acknowledging [Georgia Power's property] claim, [Farm Bureau] acknowledged its liability to [Georgia Power] and to its driver Burckhalter and that the payments made by [Farm Bureau] to [Georgia Power] ... were a settlement of [an unquestioned] claim on certain terms....Georgia Farm Bureau's payment to [Georgia Power] acted as an admission of liability and accord and satisfaction of all claims between these parties."

Carden contends he can assert this claim for contribution because OCGA § 33-7-12 allows an insured to assert claims when the insurer's settlement of claims was without his consent.Appellees contend the trial court's finding of an accord and satisfaction is supported by sufficient evidence.Held:

1.(a)Appellees contend the standard for review of a grant of motion to dismiss is whether the ruling is supported by "any evidence," because in Vaughan v. Vaughan, 253 Ga. 76, 77, 317 S.E.2d 201the court held that if the grant " 'is authorized for any reason' " it must be affirmed.However the rule that a judgment right for any reason must be affirmed is not the same thing as the "any evidence" rule.It is not realistic to suggest that "any evidence" will uphold a finding that a plaintiff is " ' "entitled to no relief under any state of facts which could be proved in support of his claim." ' "Id.SeeOCGA § 9-11-14(a) and (b).

(b) In the same vein, appellees contend this dismissal is really a grant of directed verdict at trial, which must be affirmed because the trial court was "authorized" to find Carden admitted liability and because there is "sufficient evidence" of accord and satisfaction.Appellees contend the appellate court"should apply the directed verdict/motion to dismiss[non-jury trial] standard which this court described in Southern Gen. Ins. Co. v. Holt, 200 Ga.App. 759(409 SE2d 852): ' " 'The standard of appellate review of the trial court's denial [or grant] of a motion for directed verdict is the "any evidence" standard.' "[Cit.]'Foreman v. Eastern Foods, 195 Ga.App. 332, 333(393 SE2d 695)."(Emphasis supplied).This misquotes both Southern Gen. Ins. Co. and Foreman, supra.It is misleading to use brackets to add substantive legal language which does not appear in the case quoted.

A directed verdict is authorized only when "there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict."OCGA § 9-11-50(a).A grant of directed verdict is a ruling that the evidence and all reasonable deductions therefrom demand a particular verdict.OCGA § 9-11-50(a).It is illogical to say such a finding will be upheld if there is "any evidence" to support it.A grant of directed verdict can be upheld only where we determine that all the evidence demands that verdict.This requires a de novo review.It was said in Ga. Dept. of Human Resources v. Montgomery, 248 Ga. 465, 466, 284 S.E.2d 263 that "[i]n Georgia, the standard used to review the grant or denial of a directed verdict is the 'any evidence' test"; however, this was used to explain "substantial evidence" and it was dictum.Also, the case cited for the proposition, Speir v. Williams, 146 Ga.App. 880, 247 S.E.2d 549, never made it.A "rule" that the standard for review of the grant of directed verdict is the "any evidence" test is often either quoted in dictum (e.g., where the review is of a denial of directed verdict) or is not used in the sense advocated by appellees.SeeNorfolk Southern Corp. v. Smith, 262 Ga. 80, 84, 414 S.E.2d 485;Emory Univ. v. Levitas, 260 Ga. 894, 897, 401 S.E.2d 691;Southern R. Co. v. Lawson, 256 Ga. 798-799, 800(1)(a), 353 S.E.2d 491;Moore v. Allen, 255 Ga. 430, 339 S.E.2d 243;Skelton v. Skelton, 251 Ga. 631, 308 S.E.2d 838;Hixson-Hopkins Autoplex v. Custom Coaches,...