Gibbs v. Abiose, A98A2213.

• Decision Date: 26 October 1998
• Docket Number: No. A98A2213.,A98A2213.
• Citation: 235 Ga. App. 214,508 S.E.2d 690
• Parties: GIBBS v. ABIOSE.
• Court: Georgia Court of Appeals

508 S.E.2d 690

235 Ga. App. 214

GIBBS v. ABIOSE.

No. A98A2213.

Court of Appeals of Georgia.

October 26, 1998.

Reconsideration Denied November 12, 1998.

Kunle Ogundele, Atlanta, for appellant.

Fain, Major & Wiley, John K. Miles, Jr., Atlanta, for appellee. ELDRIDGE, Judge.

Appellant Engrid Gibbs' was involved in an automobile collision on June 30, 1995¹ with the appellee Fatai Abiose. Gibbs filed suit seeking recovery of property damages to her automobile, rental car expenses, and court costs. During the course of the litigation, Abiose failed to submit to a court ordered deposition, because he contended that Gibbs bought the Porsche 911 Carrera Targa from Peter Uabesia in a wrecked and unrepaired condition and that no additional damages occurred to the Porsche in the collision between him and Gibbs. Due to Abiose's failure to submit to deposition, the trial court struck Abiose's answer and declared him in default as to the issue of liability. The case was tried before a jury on the issue of damages only.

At trial, the evidence showed the following: Gibbs testified that on June 20, 1995, she purchased a Porsche 911 Carrera Targa from Peter Uabesia, d/b/a Pete's Express Auto, and drove it home. Gibbs further testified that, at the time she purchased the Porsche, it was in good condition and did not have any body damage. Gibbs testified that she did not drive the Porsche again until June 30, 1995, when she drove it from her home to a nearby restaurant. As Gibbs left the restaurant, she was involved in a collision with Abiose. Gibbs testified that she had only driven the Porsche 20 to 30 miles prior to the collision and had not noticed if the speedometer or odometer was working properly.

The police were not called to the scene of the collision between Gibbs and Abiose, and, therefore, there was no investigating police officer's report. However, Gibbs and Abiose exchanged telephone numbers and insurance information. After the collision, Gibbs drove her automobile to the restaurant where she had just eaten dinner and left it to be picked up by a tow truck.

On August 1, 1995, Edward Clayborn Cooley, a total loss adjuster with Allstate, inspected Gibbs' Porsche at Sadisco Salvage Yard ("Sadisco"). After Cooley completed his inspection, he sent a report, which included the vehicle identification number and which described the Porsche's options, to Certified Collateral Corporation ("Certified Collateral") in order to obtain the current market value of the Porsche. When Certified Collateral sent Allstate its report, Certified Collateral indicated on the report that Sentry Insurance Company ("Sentry") had requested the current market value on the same automobile a couple of months earlier for the same physical damage.

Cooley contacted Sentry and discovered that the Porsche had previously been in a collision on May 4, 1995, and that Sentry had paid out their property damage limits of $10,000 and allowed the owner to keep the Porsche. A claims representative of Sentry telefaxed copies of photographs its adjuster had taken of the Porsche after the May 4, 1995 collision. Cooley determined that the right rear end damage shown on the photographs was identical to the damage he had just noted on the Porsche, with the exception of additional rust where the paint had been knocked off.

Cooley contacted George Hill, an independent appraiser, whom Sentry had requested to inspect the Porsche after the May 4, 1995 collision. Hill testified that he had inspected the Porsche at Sentry's request on May 12, 1995. On this date, Hill had photographed the Porsche and wrote a report of his inspection. Hill further testified that at the time of his May inspection that, in addition to the damage to the right rear end, the Porsche was generally in poor condition.

After the June 30, 1995 collision between Gibbs and Abiose, Hill, at the request of Abiose, went to Sadisco to re-inspect the Porsche. Hill testified that the Porsche involved in the May 4, 1995 collision was the same Porsche involved in the collision between Gibbs and Abiose, as it had the same vehicle identification number. Hill further testified that the damage to the Porsche was identical to the damage he had previously noted on May 12, 1995, with the exception of additional rust. Additionally, the odometer showed the same mileage as when he had inspected the car on May 12, 1995, indicating that the Porsche had not been driven since.²

Hill further testified that he had owned his own body shop for 11 years and had often worked on Porsche automobiles, and that in his opinion there was insufficient time for Gibbs' Porsche to be repaired between the May 4, 1995 collision and the June 30, 1995 collision. Hill testified that it would take between six and eight weeks to complete the repair work because it would be necessary to specially order parts, and the damage to the Porsche was extensive. Hill also testified that, in his opinion, the Porsche had not been repaired since the May 4, 1995 collision.

Gibbs called her own expert, David Aria. Aria had not seen the Porsche until it was delivered to his repair facility from the Sadisco lot by Gibbs' attorney. Aria knew nothing about the condition of the Porsche prior to the time it was brought to his lot. Therefore, Aria could not testify as to when the Porsche had been damaged. However, he testified that it could have been damaged on May 4, 1995. Significantly, Aria testified that, whenever the Porsche was damaged, the oil cooler sustained damage, which would have prevented the Porsche from being driven. Aria further testified that, if a vehicle was towed on a flat bed truck, as he towed Gibbs' Porsche, its mileage would not change on the odometer.

The jury returned a verdict in favor of Gibbs, but found damages in the amount of zero dollars. Gibbs appeals.

1. There was no error in the trial court denying Gibbs' motion for judgment notwithstanding the verdict. A trial court is only authorized to grant a j.n.o.v. "[w]here 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[.]" (Citations and punctuation omitted.) South Fulton Medical Center v. Poe, 224 Ga.App. 107, 108, 480 S.E.2d 40 (1996). Under this standard and the evidence in this case, there was no error in the trial court's denial of Gibbs' motion for j.n.o.v.

2. Gibbs contends that the trial court erred in admitting evidence as to liability.

OCGA § 9-11-55(a) provides in relevant part that when a case is in default, the plaintiff is entitled to judgment "as if every item and paragraph of the complaint or other original pleading were supported by proper evidence, without the intervention of a jury, unless the action is one ex delicto or involves unliquidated damages, in which event the plaintiff shall be required to introduce evidence and establish the amount of damages... with the right of the defendant to introduce evidence as to damages[.]" "Defenses which go to the right of recovery are not available to the defendant in default even though the same defense may also go to the assessment of damages. [Cit.]" Whitby v. Maloy, 150 Ga.App. 575, 576, 258 S.E.2d 181 (1979). Therefore, Abiose would be entitled to "contest the issue of damages by rigid cross-examination and by the introduction of evidence so long as [such evidence] did not touch on the issue of liability. [Cits.]" Magnan v. Miami Aircraft Support, 217 Ga.App. 855, 856, 459 S.E.2d 592 (1995).

After considering the testimony Gibbs complains of, we conclude that the trial court did not err in allowing it. The challenged testimony that Gibbs' Porsche had been in a collision approximately eight weeks earlier and that the damage to the Porsche after this collision was identical to the damage that existed after the previous collision did not challenge Abiose's liability for any damages which occurred in the collision between Abiose and Gibbs or the right of Gibbs to recover such damages, but went only to the amount of damages as shown by the evidence. Accordingly, the testimony was admissible.

3. Gibbs further alleges that the trial court erred in excluding evidence of her damages for towing and storage of the Porsche.

However, the jury found that the damage to Gibbs' Porsche was not caused by the collision between her and Abiose. Accordingly, the exclusion of evidence of towing and storage, if error, would be harmless.

4. Having examined the appellate record in this case, this Court finds that Gibbs' assertion that the trial court erred in becoming a partial arbiter in the parties' controversy and in engaging in unlawful ex-parte communications with defendant's counsel is meritless.

5. Gibbs alleges that the trial court erred in qualifying Hill and Cooley as expert witnesses and in allowing their opinion testimony.

"Generally speaking, nothing more is required to qualify a witness as an expert than to show that, through education, training, or experience, he has special knowledge concerning the matter of science or skill to which his testimony relates." (Citations and punctuation omitted.) Macon-Bibb County Hosp. Auth. v. Whipple, 182 Ga.App. 195, 196, 355 S.E.2d 83 (1987). "This Court has repeatedly held that it is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular profession as to entitle him to be deemed prima facie an expert." (Citations and punctuation omitted.) Wingfield v. State, 229 Ga.App. 75, 84, 493 S.E.2d 235 (1997).

We find there was sufficient evidence to support the trial court's qualification of both Hill and Cooley as experts in the areas of their opinion testimony. Accordingly, there was no abuse of discretion in the present case.

6. Gibbs asserts that the trial court erred in admitting photographs of the Porsche taken by counsel for Abiose, Hill, and Cooley and in...