Georgia–Pacific, LLC v. Fields, s. S12G1393

• Court: Supreme Court of Georgia
• Writing for the Court: HINES
• Citation: 748 S.E.2d 407,293 Ga. 499
• Parties: GEORGIA–PACIFIC, LLC et al. v. FIELDS et al. Union Carbide Corp. et al. v. Fields et al.
• Docket Number: S12G1417.,Nos. S12G1393,s. S12G1393
• Decision Date: 09 September 2013

293 Ga. 499
748 S.E.2d 407

GEORGIA–PACIFIC, LLC et al.
v.
FIELDS et al.
Union Carbide Corp. et al.
v.
Fields et al.

Nos. S12G1393, S12G1417.

Supreme Court of Georgia.

Sept. 9, 2013.

[748 S.E.2d 409]

Lee Ann Anand, Melinda Lee Moseley, Nelson, Mullins, Riley & Scarborough, LLP, Richard A. Schneider, King & Spalding, LLP, Lawrie E. Demorest, James Charles Grant, William Clay Massey, Alston & Bird LLP, Ivan Andrew Gustafson, Frances Laura Spinelli, Evert Weathersby Houff, Atlanta, for appellant.

Robert Cape Buck, Buck Law Firm, Atlanta, for appellee.

HINES, Presiding Justice.

This Court granted a writ of certiorari to the Court of Appeals in Union Carbide Corp. v. Fields, 315 Ga.App. 554, 726 S.E.2d 521 (2012), which involves assignment of tort liability to entities who are not parties to the suit, as provided for in OCGA § 51–12–33(c). Finding that the Court of Appeals erred in Division 1 (d) of its opinion in holding that admissions concerning the nonparties found in the pleadings and elsewhere did not constitute evidence for the purpose of summary judgment, and also erred in applying the “right for any reason” rule to the issue, we reverse.

As set forth in the opinion of the Court of Appeals, and as revealed in the record before the trial court, the facts of the case are the following. Rhonda Fields (“Mrs. Fields”) suffers from peritoneal mesothelioma allegedly contracted as a result of her childhood exposure to asbestos dust from various sources. She and her husband (“the Fields”) alleged in their complaint, and the accompanying sworn information form of Mrs. Fields, see OCGA § 51–14–7, that Georgia–Pacific, LLC and Union Carbide Corporation (“Defendants”), as well as a number of other companies, were responsible for either mining, manufacturing, processing, importing, converting, compounding, selling, or distributing the asbestos-containing products to which Mrs. Fields was exposed. The Fields separately reached settlements with a number of nonparty entities and original defendants, and in pleadings subsequent to the original complaint, omitted any allegation that Central Moloney, Inc. (“Central Moloney”), Nehring Electrical Works Co. (“Nehring”), Phelps Dodge Cable & Wire (“Phelps Dodge”),¹ Southern States LLC (“Southern

[748 S.E.2d 410]

States”), and Southwire Company (“Southwire”) (collectively “nonparty entities”) were responsible for Mrs. Fields's injuries.

As the case proceeded in the trial court, the Fields moved for partial summary judgment on the issue of nonparty fault, seeking to preclude Defendants from presenting the potential fault of the nonparty entities for purposes of apportioning potential damages. The state court granted the motion, and the Court of Appeals affirmed.

1. In Division 1 (d) of its opinion, the Court of Appeals addressed the Defendants' argument that summary judgment on this issue was inappropriate because the Defendants had

presented sufficient evidence, in the form of allegations contained in the Fieldses' complaint and in Mrs. Fields' sworn information form, to preclude summary judgment on their nonparty defense as it pertained to the potential fault of nonparties Central Moloney, Nehring, Phelps Dodge, Southern States, and Southwire.

Union Carbide, supra at 562, 726 S.E.2d 521 (footnote omitted). The Court of Appeals held that

[a]s an initial matter, unverified allegations in a plaintiff's complaint are generally not evidence for purposes of defeating summary judgment. See Jones v. City of Willacoochee, 299 Ga.App. 741, 742, 683 S.E.2d 683 (2009). Nor are allegations in a verified complaint. See Fletcher v. Hatcher, 278 Ga.App. 91, 93(2), 628 S.E.2d 169 (2006) (“We do not consider the allegations in plaintiffs' verified complaint to be evidence, because the verification therein was based on ‘the best of plaintiffs' knowledge and belief.’ ”) (punctuation omitted). “As personal knowledge (not belief) is required in a verification for summary judgment purposes, plaintiffs' complaint contains mere allegations and not sworn statements.” (Citation and footnote omitted.) Id. Mrs. Fields' sworn information form is no different than a verification form submitted in support of a complaint—that is, Mrs. Fields' form explicitly stated that the information contained therein was based upon the “best of her knowledge and belief.”

Union Carbide, supra at 562(1)(d), 726 S.E.2d 521. However, neither of the opinions relied upon by the Court of Appeals pertains to this situation; both cases dealt with arguments presented by plaintiffs that the allegations in their own pleadings served to defeat the motion for summary judgment made by the opposing party. See Jones, supra;Fletcher, supra. Rather, the law governing this situation is expressed in then-effective OCGA § 24–3–30, which read: “Without offering the same in evidence, either party may avail himself of allegations or admissions made in the pleadings of the other ” (Emphasis supplied). See current OCGA § 24–8–821.² Such admissions or allegations appearing in the pleadings are treated as admissions in judicio and, if not withdrawn, are conclusive of the facts contained therein. See Mims v. Jones, 135 Ga. 541, 544(1), 69 S.E. 824 (1910); Walker v. Jack Eckerd Corp., 209 Ga.App. 517, 519–520(1), 434 S.E.2d 63 (1993).

Further, the admissions and allegations upon which the Defendants wished to rely in meeting the motion for summary judgment were admissions of fact, i.e., that Mrs. Fields had been exposed to asbestos-containing products which the nonparty entities had produced or distributed. As such, they were not “ ‘merely the opinion or conclusion of the pleader as to law or fact,’ ” Howell Mill/Collier Assoc. v. Pennypacker's, Inc., 194 Ga.App....