Harrison v. S & B Trucking, Inc., 72002

• Decision Date: 05 June 1986
• Docket Number: No. 72002,72002
• Citation: 346 S.E.2d 101,179 Ga.App. 291
• Parties: HARRISON v. S & B TRUCKING, INC. et al.
• Court: Georgia Court of Appeals

Page 101

346 S.E.2d 101

179 Ga.App. 291

HARRISON v. S & B TRUCKING, INC. et al.

No. 72002.

Court of Appeals of Georgia.

June 5, 1986.

G. Gerald Kunes, Tifton, Walton Hardin, Washington, for appellant.

J. Arthur Davison, Augusta, Wilbur A. Orr, Washington, for appellees.

McMURRAY, Presiding Judge.

This is an action for damages arising from a motor vehicle collision. Plaintiff's complaint alleges that his vehicle was traveling on an interstate highway when it was struck from the rear by a vehicle operated negligently by defendant Smith. At the time of the collision defendant Smith was allegedly acting within the scope of his employment as an employee and agent of defendant S & B Trucking, Inc.

The complaint also states a claim against defendant Miller's National Insurance Company, an alleged insurer of defendant S & B Trucking, Inc. Plaintiff alleges that this insurer was guilty of bad faith in failing to negotiate the settlement of property damage in the case sub judice and committed an intentional tort by failing to adjust plaintiff's claim against the other defendants.

Plaintiff's complaint seeks damages for property damage, loss of business profit, the cost of renting equipment to replace that damaged in the collision, punitive damages, and court costs. This appeal is from the grant of defendant's motion for partial summary judgment as to those allegations seeking punitive damages. Held:

1. Defendant Smith's affidavit, presented in support of the motion for summary judgment, states that he was traveling on the interstate in a tractor trailer owned by defendant S & B Trucking, Inc.; it was a foggy night and visibility was difficult; he was driving within the speed limit, when suddenly and without warning he came upon plaintiff's vehicle; was unable to avoid a collision; and he did not know plaintiff or his driver prior to the collision and did not intend to injure plaintiff's driver or property.

In opposition to defendant's motion, plaintiff submitted the affidavit of the driver of his vehicle. The driver stated that the evening was clear, not foggy; that the vehicle owned by defendant S & B Trucking, Inc. and operated by defendant Smith suddenly approached from the rear at a speed in excess of the speed limit; that there was sufficient clear space on either side of his (plaintiff's) vehicle for a vehicle to pass without injury and thus avoid a collision.

Plaintiff contends that the language of his driver's affidavit submitted in opposition to defendant's motion for partial summary judgment is indistinguishable from the allegation in American Fidelity etc. Co. v. Farmer, 77 Ga.App. 166, 48 S.E.2d 122 and, under Division 3 of that decision, sufficient to authorize a judgment for punitive damages. " '(O)rdinarily the question of imposition of punitive damages is for the jury. However, the controlling question ... is whether there was any evidence to support (such an award) ... Absent wilful misconduct, malice, fraud, wantonness or oppression, there can be no recovery of punitive damages.' Moon v. Ga. Power Co., 127 Ga.App. 524, 527 (194 SE2d 348) (1972)." Alliance Transp. v. Mayer, 165 Ga.App. 344, 345, 301 S.E.2d 290. See also Claussen Paving Co. v. Cibak, 156 Ga.App. 393(1), 274 S.E.2d 652.

In response, defendants correctly point out that a portion of the decision in American Fidelity etc. Co., v. Farmer, 77 Ga.App. 166(3), 48 S.E.2d 122, supra, upon which plaintiff relies and which deals with the sufficiency of the...