INTERN. INDEM. CO. v. REGIONAL EMPLOYER SERV., INC.

• Decision Date: 08 July 1999
• Docket Number: No. A99A0665.,A99A0665.
• Citation: 520 S.E.2d 533,239 Ga. App. 420
• Parties: INTERNATIONAL INDEMNITY COMPANY v. REGIONAL EMPLOYER SERVICE, INC.
• Court: Georgia Court of Appeals

520 S.E.2d 533

239 Ga. App. 420

INTERNATIONAL INDEMNITY COMPANY v. REGIONAL EMPLOYER SERVICE, INC.

No. A99A0665.

Court of Appeals of Georgia.

July 8, 1999.

Reconsideration Denied July 29, 1999.

Certiorari Denied November 19, 1999.

Michael L. Wetzel, Decatur, for appellant.

Brinson, Askew, Berry, Seigler, Richardson & Davis, C. King Askew, Mark M.J. Webb, Rome, for appellee.

McMURRAY, Presiding Judge.

Plaintiff International Indemnity Company filed this action to recover premiums allegedly due on workers' compensation insurance policies issued to defendant Regional Employer Service, Inc. Defendant answered and counterclaimed for damages to its business caused by excessive premiums charged for workers' compensation insurance due to incorrect data submitted by plaintiff to the licensed rating organization. On the trial of the case, a jury returned a verdict in favor of defendant and awarded, on the counterclaim, special damages of $109,000 and attorney fees of $23,006. The judgment followed the verdict, and plaintiff appeals. Held:

1. Violation of OCGA § 33-24-47 is listed among the bases for defendant's claims in the consolidated pre-trial order. The alleged violation was a cancellation of certain workers' compensation coverage. By motion in limine, plaintiff sought to exclude evidence of losses arising from the cancellation and at trial moved for directed verdict as to defendant's counterclaim for wrongful cancellation. The denial of both motions is enumerated as error. However, plaintiff concedes that defendant "introduced no evidence and did not request a charge on O.C.G.A. § 33-24-47" which formed the basis of defendant's wrongful cancellation claim, and that "there was an absence of `any evidence' in support of a claim for wrongful cancellation." While plaintiff argues that the wrongful cancellation claim should not have been submitted to the jury, it is apparent that in fact it was not. It follows that any error in the denial of these motions was harmless and does not serve as a proper basis for reversal. In order to obtain reversal on appeal, harm as well as error must be shown. Sparti v. Joslin, 230 Ga.App. 346, 350(3), 496 S.E.2d 490; Walker v. GRO Assoc., 227 Ga.App. 569, 570(2), 489 S.E.2d 366.

2. Plaintiff's first enumeration of error complains of the denial of its motion in limine seeking to preclude defendant from offering or otherwise alluding to lost profits, lost income, diminished corporate reputation and diminution in value as a result of any alleged non-compliance with OCGA § 34-9-136.

A motion in limine is a pretrial method of determining the admissibility of evidence, as a party may secure a pretrial ruling on the admissibility of evidence or a ruling prohibiting any reference to certain evidence until its admissibility can be assessed in the context of the trial as it unfolds. State v. Johnston, 249 Ga. 413(3), 291 S.E.2d 543 (1982). By its very nature, the grant of a motion in limine excluding evidence suggests that there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial. See Green, Georgia Law of Evidence, p. 26, § 12, n. 5. In light of that absolute, the grant of a motion in limine excluding evidence is a judicial power which must be exercised with great care.

Andrews v. Wilbanks, 265 Ga. 555, 556, 458 S.E.2d 817. See also Dept. of Transp. v. Wallace Enterprises, 234 Ga.App. 1, 4(6), 505 S.E.2d 549.

In this particular instance, the transcript does not clearly indicate whether the trial court ruled on the portion of plaintiff's motion in limine now at issue. Nonetheless, we will assume for purposes of this opinion that the contested portion of the motion in limine was denied as plaintiff maintains.

OCGA § 34-9-136 requires a workers' compensation insurance provider to submit statistical data to the employer which it concerns for verification prior to sending the data to a licensed rating organization which will use the data in determining the employer's experience modification factor, an expression of risk factors which affects premium rates. In support of the first enumeration of error, plaintiff argues at length that OCGA § 34-9-136 does not create a private cause of action. Defendant responds that violation of the statute provided it with a negligence per se cause of action against plaintiff. However, this issue, concerning the existence and nature of any cause of action arising from a violation of the statute, is not determinative of the question of the admissibility of the evidence plaintiff sought to exclude.

As applied with respect to the circumstances of the case sub judice, we find that regardless of whether a violation of OCGA § 34-9-136 may serve as the proper foundation of a counterclaim asserted by defendant, evidence showing the statutory violation does not lack probative value since it is a circumstance that may be considered by the jury along with other facts and circumstances with respect to issues of mitigation of damages and set-off in connection with plaintiff's claim for amounts owed for unpaid premiums. Allen v. Lefkoff, Duncan, Grimes &c., P.C., 265 Ga. 374, 377(2)(c), 453 S.E.2d 719; Unified Svcs. v. Home Ins. Co., 218 Ga.App. 85, 87, n. 1, 460 S.E.2d 545. The evidence having relevance to the issues on trial with respect to plaintiff's claim, the denial of the motion in limine was not error. American Petroleum Products v. Mom & Pop Stores, 231 Ga.App. 1, 7(3), 497 S.E.2d 616.

3. Plaintiff enumerates as error the trial court's refusal to give its requested charge that: "The measure of damages for an allegedly excess and incorrect premium is the difference between that which was paid and the correct amount due as shown by the evidence." This request to charge was supported by citation of Dixie Constr. Products v. Southeastern Council on Compensation Ins., 183 Ga.App. 101, 357 S.E.2d 831 and Walker v. Bituminous Cas. Corp., 74 Ga. App. 517, 40 S.E.2d 228. Via this request plaintiff sought to provide a measure of damages for use with respect to defendant's counterclaim for loss of business. However, defendant's counterclaim and the evidence introduced in support thereof authorized a broader measure of damages, the reduction in value of defendant's business. Molly Pitcher Canning Co. v. Central of Ga. R. Co., 149 Ga.App. 5, 15(8), 253 S.E.2d 392. The charge requested by plaintiff cannot be said to have been adjusted to the evidence presented at trial; thus, there was no error in the refusal of this requested instruction. Roberts v. Chapman, 228 Ga.App. 365, 367(2), 492 S.E.2d 244; Smith v. Curtis, 226 Ga.App. 470, 471(2), 486 S.E.2d 699.

4. In support of two enumerations of error complaining of the denial of motions for directed verdict, plaintiff argues that defendant failed to prove damages with respect to its counterclaim for loss of business. It is uncontroverted that the jury was correctly charged that

[t]he measure of damages for that claim is the difference between the fair market value of the damaged property or the business immediately before the injury and the fair market value that remains when the business is stopped, together with any losses incurred in the interim.

After having examined the evidence referenced by defendant with respect to this issue, and having carefully surveyed all of the evidence as to damages presented at trial, we must conclude that plaintiff's assertion is incorrect.

[T]he rule against recovery of speculative damages relates primarily to speculation regarding proximate cause rather than extent. See Ga. Ports Auth. v. Servac Intl., 202 Ga.App. 777(3), 415 S.E.2d 516 (1992). Once a plaintiff establishes that damages proximately flow from the defendant's alleged conduct, "mere difficulty in fixing their exact amount" should not be a legal obstacle to recovery. See id. at 780.

Freeman v. Pittman, 220 Ga.App. 672, 674(2), 469 S.E.2d 543.

Defendant presented the testimony of an accountant on the valuation of defendant's business. The accountant testified that he had been asked to establish the value of the business on December 31, 1991, and began his testimony with respect to valuation of defendant's business on that date. The accountant testified as to his estimate of valuation and how that figure would be influenced by various hypothetical alterations of the underlying data. On both direct and cross-examination, the accountant expounded at length on the nature and value of the assets of the defendant's business under various circumstances. Eventually, the accountant was asked to consider circumstances which clearly were those that caused the damages for which defendant sought a recovery and reflected upon the value of defendant's business after the date of the injury allegedly caused by plaintiff. There were undoubtedly gaps in the data concerning the post-injury valuation of defendant's business, perhaps explained in part by the loss or destruction of certain financial records, and little explicit distinction between the pre-injury and post-injury time periods. Nonetheless, the testimony of the accountant, along with other evidence including the testimony of defendant's owner, was sufficient to provide the jury with a reasonable basis for determining the diminution in the value of defendant's business allegedly caused by plaintiff. Scriver v. Lister, 235 Ga.App. 487, 489(2), 510 S.E.2d 59; MARTA v. Green Intl., 235 Ga. App. 419, 422(1), 509 S.E.2d 674; Gipson v. Phillips, 232 Ga.App. 235, 236, 501 S.E.2d 570; Holland v. Holland Heating &c., 208 Ga.App. 794, 796(2), 432 S.E.2d 238. Thus, the denial of plaintiff's motion for directed verdict on this basis was not error.

5. Next, plaintiff contends the trial court erred in denying its motion for directed verdict on the grounds that defendant failed to prove proximate cause. Plaintiff's vice-president admitted that plaintiff had not begun submitting the data, which it provided to the rating...