Corrugated Replacements, Inc. v. Johnson

• Decision Date: 23 February 2017
• Docket Number: A16A1835
• Citation: 340 Ga.App. 364,797 S.E.2d 238
• Parties: CORRUGATED REPLACEMENTS, INC. et al. v. JOHNSON et al.
• Court: Georgia Court of Appeals

340 Ga.App. 364

797 S.E.2d 238

CORRUGATED REPLACEMENTS, INC. et al.

v.JOHNSON et al.

A16A1835

Court of Appeals of Georgia.

February 23, 2017

Kevin Patrick Branch, Sean Lamar Gill, James William Hardee, Atlanta, for Appellant.

Angela Rene Fox, Mecca Shali Anderson, Darren Summerville, Brian DeVoe Rogers, Atlanta, for Appellee.

Bethel, Judge.

In July 2011, Jacob Lee was under the influence of alcohol and an inhalant while driving a truck that struck a van carrying the Johnson family, killing one Johnson child and severely injuring other family members. The truck driven by Jacob was owned by Corrugated Replacements, Inc., a company in which Jacob's father, Robert Lee, held an ownership interest. The Johnson parents sued Robert and Corrugated Replacements (the "Defendants"), and the Defendants moved for summary judgment. The trial court denied the Defendants' motion, and we granted the Defendants' application for interlocutory appeal.

On appeal, the Defendants argue that the trial court erred in denying their motion for summary judgment because (1) the Johnsons admitted that there was no evidence to support their negligent entrustment claim; (2) Corrugated was not vicariously liable for Jacob's negligence because he was not acting within the scope and course of his employment; (3) the joint venture doctrine was inapplicable and thus could not impose liability on the Defendants; (4) the Johnsons' attempts to obtain damages under a reverse veil piercing theory is foreclosed by law; and (5) the Plaintiffs' request for uncapped punitive damages was not supported by law. We agree with each of these arguments and therefore reverse the denial of summary judgment to the Defendants.¹

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Ass'n of Savannah v. Chatham Cty. , 276 Ga. 243, 245 (1), 577 S.E.2d 564 (2003).

So viewed, the evidence, which is largely undisputed, shows that Jacob began working for pay at Corrugated when he was 14 years old. Jacob did various tasks at Corrugated and was required to do "whatever he was asked to do." Although Jacob did not drive Corrugated vehicles as a part of his job, he had full access to company vehicles. In February 2011, Jacob was given a 2011 Dodge Ram—the truck Jacob was driving when he struck the Johnsons—as a gift for his 16th birthday. In deposition, Robert stated that he personally paid for the truck and gave it to Jacob for his personal use, and that Robert listed Corrugated as owner on the title in the event the vehicle was needed for company purposes. Corrugated paid insurance on the truck and allowed Jacob to use a company credit card to pay for fuel. Although no maintenance was performed on the truck prior to the July 2011 accident, the record shows that Corrugated paid for the maintenance of other company-owned vehicles purchased for other Lee family members, even those not employed by the company, that were used for personal reasons.

At the time of the July 2011 collision, Jacob was not working for Corrugated. Other evidence also showed that, prior to the collision, Jacob had never received a traffic ticket or been involved in an accident, and it was undisputed that Robert had no knowledge that Jacob drank alcohol or used inhalants.

1. The Defendants argue that the trial court erred in denying their motion for summary judgment on the Johnsons' negligent entrustment and respondeat superior claims because the Johnsons conceded that these claims failed as a matter of law. In response, the Johnsons argue that because they did not contest the Defendants' motion on these issues, the claims were no longer before the trial court for consideration. Regardless of whether the Johnsons contested the Defendants' motion for summary judgment on these two claims, they were not disposed of and remain pending below. Therefore, we must consider whether the Defendants are entitled to summary judgment.

(a) The record confirms that the Johnsons admitted that Robert, part owner of Corrugated, was unaware that Jacob drank alcohol or used inhalants. Additionally, the Johnsons pointed to no evidence showing that Jacob's uncle, the other co-owner of Corrugated, knew about Jacob's drinking or use of inhalants.² The undisputed evidence also shows that Jacob never received a traffic ticket or was involved in an accident.

A necessary element of a negligent entrustment claim is that the owner of a vehicle has actual knowledge that the driver is incompetent or habitually reckless. See Bashlor v. Walker , 303 Ga.App. 478, 480 (1) (a), 693 S.E.2d 858 (2010). Here, the record is devoid of evidence establishing such knowledge, and Corrugated was therefore entitled to summary judgment on the negligent entrustment claim. See Cowart v. Widener , 287 Ga. 622, 623 (1) (a), 697 S.E.2d 779 (2010) (a defendant is entitled to summary judgment where the plaintiff is unable to point to specific evidence in the record giving rise to a genuine issue of fact on plaintiff's claims).

(b) As for the Johnsons' respondeat superior claim, an employer is liable under this theory when the employee is acting within the course and scope of his employment. Hicks v. Heard , 286 Ga. 864, 865, 692 S.E.2d 360 (2010). Although a presumption arises that the employee was acting in the course and scope of employment when the employee was driving his employer's vehicle at the time of the collision, the employer may overcome this presumption "by presenting uncontradicted evidence showing that the employee was not acting in the course and scope of his employment." See Dougherty Equip. Co., Inc. v. Roper , 327 Ga.App. 434, 436 (1) (a), 757 S.E.2d 885 (2014).

Here, although Jacob was driving a Corrugated vehicle at the time of the collision, the Johnsons admitted that Jacob was engaged in a purely personal activity and was not acting within the course and scope of his employment with Corrugated at the time of the collision. Therefore, Corrugated was entitled to summary judgment on the respondeat superior claim. See Dougherty Equip. Co. , 327 Ga.App. at 436-37 (1) (a), 757 S.E.2d 885.

2. The Defendants also argue that they were entitled to summary judgment on the Johnsons' claim that the Defendants were liable under a joint venture theory, which was raised for the first time in the Johnsons' response to the Defendants' summary judgment motion.³ We agree that the Defendants were entitled to summary judgment on this claim.

"The theory of joint venturers arises where two or more parties combine their property or labor, or both, in a joint undertaking for profit, with rights of mutual control (provided the arrangement does not establish a partnership), so as to render all joint venturers liable for the negligence of the other."

Kissun v. Humana, Inc. , 267 Ga. 419, 420, 479 S.E.2d 751 (1997). A joint venture cannot exist without the right to exercise mutual control. Rossi v. Oxley , 269 Ga. 82, 83 (1), 495 S.E.2d 39 (1998). Thus, for a joint venture to exist, there must be not only a joint interest in the objects and purpose of the enterprise, but also an equal right, express or implied, to direct and control the conduct of one another in the activity causing the injury. Williams v. Chick-fil-A, Inc. , 274 Ga.App. 169, 170, 617 S.E.2d 153 (2005) ; Security Dev. & Inv. Co. v. Williamson , 112 Ga.App. 524, 525, 145 S.E.2d 581 (1965). It is the right of mutual control, rather than the actual exercise, that must be shown. Kelleher v. Pain Care of Georgia, Inc. , 246 Ga.App. 619, 620, 540 S.E.2d 705 (2000).

Here, the Johnsons allege that the purchase and use of the company truck was a joint undertaking by Jacob, Robert, and Corrugated to satisfy the vehicular needs of each member.⁴ Assuming, without deciding, that this was a "joint undertaking for profit," the critical element of mutual control is still missing. The evidence shows that the Defendants had the right to control Jacob's use of the company vehicle, given that it was considered one of the company's "on-call" vehicles that could be used by the company at any time. Robert also testified that he could get in the truck at any time.

There is no evidence, however, that Jacob had a mutual right. Although Jacob was given use of the vehicle for personal reasons, the undisputed evidence shows that company had the right to use the vehicle whenever the company needed it. There is no record evidence that Jacob had any right, express or implied, to direct or control the Defendants' use of the vehicle, including the right to keep the Defendants from using the vehicle when they desired. Without the right of each member to direct and control the conduct of the other, there is no joint venture. See Rossi , 269 Ga. at 83 (1), 495 S.E.2d 39 (agreement among doctors to be "on-call" for one another did not establish a joint venture in the absence of evidence that the physicians controlled each other's professional judgment in the treatment of patients); Yancey v. Watkins , 308 Ga.App. 695, 696–97, 708 S.E.2d 539 (2011) (farmworker and landowner were not engaged in joint venture where there was no evidence the farmworker had an equal right to control whether and how the landowner farmed his crop). Because there is no evidence of mutual control, the trial court erred by denying summary judgment to the Defendants on the joint venture claim.

3. The Defendants next argue that the Johnsons' reverse veil-piercing claim is not recognized as a viable claim in Georgia and, therefore, could not defeat the Defendants' motion for summary judgment. We agree.

There are two types of reverse piercing claims—"insider" and "outsider" claims. See Acree v. McMahan , 276 Ga. 880, 881, 585 S.E.2d 873 (2003). The Johnsons are asserting an outsider reverse piercing claim in an attempt to permit them, as...