Griffin v. Wittfeld, 54480

• Decision Date: 12 October 1977
• Docket Number: No. 54480,No. 2,54480,2
• Citation: 238 S.E.2d 589,143 Ga.App. 485
• Parties: Vivian GRIFFIN v. L. B. WITTFELD, Jr., et al
• Court: Georgia Court of Appeals

Page 589

238 S.E.2d 589

143 Ga.App. 485

Vivian GRIFFIN v. L. B. WITTFELD, Jr., et al.

No. 54480.

Court of Appeals of Georgia, Division No. 2.

Oct. 12, 1977.

Calhoun & Donaldson, George M. Hubbard, III, Savannah, for appellant.

Adams, Adams, Brennan & Gardner, Kathleen Horne, Richard A. Rominger, Savannah, for appellees.

SHULMAN, Judge.

Plaintiff-appellant brought suit praying for damages for pain and suffering plus punitive damages allegedly arising from a car wreck in which defendant-appellee rear-ended appellant's vehicle. Defendants moved for summary judgment on the grounds that suit was barred by the Georgia Motor Vehicle Reparations Act, § 56-3401b et seq. This appeal is from the grant of summary judgment in favor of defendants.

1. Appellees argue that this court should not consider appellant's arguments advanced in opposition to the summary judgment because the arguments were not raised in the court below. We do not agree.

" It is not a prerequisite for the review of the enumerated errors, that the plaintiff object to or make an issue of these errors at the trial below, when the alleged errors are asserted as reasons why the trial court should not have granted the defendant's motion for summary judgment. Rule 56(h), CPA (Code Ann. § 81A-156(h))." Southern Protective Products Co. v. Leasing International, Inc., 134 Ga.App. 945, 946, 216 S.E.2d 725, 727.

2. The court in granting summary judgment found that plaintiff's suit was barred because she failed to sustain a "serious injury" as required by the Act. Code Ann. § 56-3402b(j) defines "serious injury" to include ". . . an injury resulting in disability for not less than 10 consecutive days." In her complaint, it was alleged that plaintiff "suffered severe permanent disability to her body." Defendants' motion for summary judgment failed to address the nature and extent of injuries sustained by plaintiff and therefore did not pierce plaintiff's allegations.

" The burden is on the defendant in its motion for summary judgment to affirmatively negative plaintiff's claim and show plaintiff is not entitled to recover under any theory of the case and this by evidence, which demands a finding to that effect. (Cits.)" First of Georgia Ins. Co. v. Josey, 129 Ga.App. 14, 15, 198 S.E.2d 381, 382. Not having pierced the pleadings, appellees failed to carry their burden.

3. Since appellees failed to carry the burden of piercing the pleadings concerning the extent and nature of appellant's injuries, appellees' contention that appellant's depositions and affidavits relating to injuries sustained were based on hearsay is immaterial. Cf. State Farm etc. Ins. Co. v. Tucker, 130 Ga.App. 187, 202 S.E.2d 551 (where defendant moves for summary judgment, all evidence is construed against movant and in favor of party opposing motion; it is immaterial that there are inconsistencies in depositions and affidavits of party opposing motion).

"( U)ntil movant has made a prima facie showing by evidence which demands a finding in his favor as to the particular matter, there is no duty upon the opposing party to produce rebuttal evidence (Cits)." Henderson v. Atlanta Transit System, Inc., 133 Ga.App. 354(1), 356, 210 S.E.2d 845, 846-47.

4. In the court below, appellant contended that even if no "serious injury" as defined in Code Ann. § 56-3402b(j) was sustained, she was entitled to bring a suit for punitive damages alone. The trial court held in its order granting summary judgment that a suit for punitive damages ¹ without "serious injury" would not lie under our Motor Vehicle Reparations Act. We agree.

Code Ann. § 56-3410b(a) provides that, "In an action against the person insured as provided in Sec. 56-3403b (as were appellees in this case), or self-insurer, to recover damages because of accidental bodily injury arising out of ownership, operation, maintenance, or use of an insured motor vehicle in this State, an insured person shall be exempt from liability to pay damages for noneconomic loss unless...