Keenan v. Hill
| Decision Date | 19 January 1989 |
| Docket Number | No. 77385,77385 |
| Citation | 190 Ga.App. 108,378 S.E.2d 344 |
| Parties | KEENAN et al. v. HILL et al. |
| Court | Georgia Court of Appeals |
J. Wayne Moulton, Decatur, C. Michael Walker, Covington, for appellants.
R. Chris Irwin & Associates, Bryan F. Dorsey, Jamie L. Mack, Atlanta, for appellees.
Plaintiff Monty Steven Hill brought this personal injury action against Anthony Lee Keenan and All Day Leasing, Inc. ("All Day Leasing"). He alleged that All Day Leasing owned a 1980 Cadillac automobile which it negligently entrusted to Keenan on July 23, 1982; that, on that date, Keenan negligently operated the automobile; that, as a direct and proximate result of the negligence of All Day Leasing and Keenan, plaintiff sustained serious personal injuries and property damage; and that, therefore, Keenan and All Day Leasing were liable to plaintiff in the amount of $76,227.11.
Answers were filed by All Day Leasing, Keenan and Keenan, Inc. They denied that they were liable to plaintiff in any way.
Whether defendants were insured was questionable. Accordingly, plaintiff served his uninsured motorist carrier--Travelers Insurance Company ("Travelers")--by second original. Travelers filed defensive pleadings in its own name and denied that it was liable to plaintiff. In addition, Travelers asserted cross-claims against All Day Leasing and Keenan to recover any sums it might be required to pay plaintiff.
Prior to trial, plaintiff compromised and settled his claim against Travelers. Accordingly, Travelers was dismissed as a party to the proceedings. Thereafter, Travelers dismissed its cross-claims against All Day Leasing and Keenan.
Defendants objected to the dismissal of Travelers. They argued that, having elected to proceed in its own name, Travelers' interest could not be represented thereafter by plaintiff. The trial court disagreed. It ruled that, in light of a settlement agreement executed by plaintiff and Travelers, plaintiff could prosecute the action in his own name and for the benefit of Travelers.
On the morning of trial, before any evidence was taken, plaintiff announced that he was seeking punitive damages. The trial court permitted plaintiff to seek such damages over defendants' objection. In so doing, the trial court pointed out that a pre-trial order had not been signed and entered.
Upon the conclusion of the trial, the jury awarded plaintiff $297,949.24. Punitive damages against defendant Keenan accounted for $100,000 of the total award. (It also was determined that the conveyance of the real property from All Day Leasing to Keenan, Inc., should be set aside.) Judgment was entered accordingly. (The judgment against defendant Keenan was reduced by $17,000, however, to reflect previous payment of that amount as criminal restitution.) This appeal follows. Held:
1. In their first and second enumerations of error, defendants contend the trial court erred in allowing Travelers' interest to be prosecuted in plaintiff's name. In this regard, defendants assert that the election of an uninsured motorist carrier to proceed in its own name is irreversible. Defendants cite no authority for this assertion and we find none. We see no reason, however, to require an uninsured motorist carrier to continue to proceed in its own name simply because it elected to do so initially. See generally Johnson v. Amerson, 179 Ga.App. 75, 345 S.E.2d 94. The first and second enumerations of error are without merit.
2. In their third and fourth enumerations of error, defendants assert the trial court erred in refusing to permit defendants to introduce evidence concerning uninsured motorist benefits and optional personal injury protection benefits that plaintiff received from Travelers. This assertion is without merit. State Farm Mut. Auto. Ins. Co. v. Chastain, 167 Ga.App. 822, 823, 307 S.E.2d 717; City Council of Augusta v. Lee, 153 Ga.App. 94, 264 S.E.2d 683; Hall v. White, 150 Ga.App. 545, 258 S.E.2d 256. See also Polito v. Holland, 258 Ga. 54, 365 S.E.2d 273.
3. No pre-trial order having been entered, and no evidence having been taken, it cannot be said the trial court erred in permitting plaintiff to amend the complaint in order to seek punitive damages. See Jackson v. Paces Ferry Dodge, 183 Ga.App 502, 503(1), 359 S.E.2d 412. Besides, defendants failed to demonstrate how they would be prejudiced by such an amendment. See OCGA § 9-11-15(b). Defendants' fifth enumeration of error lacks merit.
4. The trial court did not err in refusing to grant defendant Keenan's motion for a directed verdict with regard to punitive damages. "The conduct of a hit-and-run driver of an automobile in failing to stop and give his name, etc., and render assistance to the person injured, when taken in connection with all the circumstances, may authorize a finding that the conduct of the driver in causing the injury constituted an entire want of care and conscious indifference to consequences, and therefore that there were such 'aggravating circumstances in the act' as would authorize a recovery by the person injured for punitive damages...." Battle v. Kilcrease, 54 Ga.App. 808, 810(4), 189 S.E. 573. Enumeration of error number 6 fails.
5. In the seventh enumeration of error, defendant All Day Leasing contends the trial court erred in failing to grant its motion for summary judgment and its motion for a directed verdict on the negligent entrustment issue. In this regard, it points out that no corporate officer of All Day Leasing (other than defendant Keenan himself) had actual knowledge of Keenan's poor driving record and that, in any event, the vehicle was leased by All Day Leasing to another corporate entity--United Truckers Service, Inc.--on the day in question.
We cannot pass upon the propriety of All Day Leasing's motion for summary judgment. Following the entry of the verdict and judgment, the order denying the summary judgment motion became moot. Stone Mountain Pool, etc., Co. v. Imperial Pool Co., 170 Ga.App. 283(2), 316 S.E.2d 769. We will review, of course, the denial of All Day Leasing's motion for a directed verdict.
The evidence adduced in the trial court demonstrates the following: All Day Leasing owned the Cadillac automobile driven by Keenan. An insurance policy covering the automobile was issued to Lynn Mason Keenan, Keenan's former wife. All Day Leasing leased the automobile to United Trucking Services, Inc. ("United Trucking") on September 16, 1980. The lease was in effect at the time of the collision.
The collision occurred during the early morning hours (approximately 2:00 a.m.) on July 23, 1982. At that time, Keenan was using the Cadillac automobile for his personal use.
Keenan was the vice-president of All Day Leasing; he was also an officer of United Trucking and Keenan, Inc. Keenan's mother was the president of All Day Leasing; his father was the corporation's secretary. Keenan's family members also held offices in United Trucking and Keenan, Inc. Keenan's mother, father and Keenan's former wife held the stock in All Day Leasing, United Trucking and Keenan, Inc.
Keenan used the Cadillac automobile almost daily. He used it for both business and personal purposes. Sometimes, he drove it home and parked it overnight. Other officers and employees of All Day Leasing, United Trucking and Keenan, Inc., used the automobile too. But Keenan himself used it most frequently.
The automobile was equipped with a radar detector. Keenan testified that he purchased the device as a gift for his former wife.
From May 30, 1977, until the time of the collision, Keenan was convicted of speeding four times and driving under the influence one time. Ultimately, his license was revoked and he was driving without a license when the collision occurred.
Keenan testified that he never told his parents, former wife, or any employee of All Day Leasing about his driving record. Keenan's mother testified that she was unaware of the traffic offenses committed by her son. Neither Keenan's father, nor his former wife, nor any other employee of All Day Leasing testified at the trial.
Based on the foregoing facts, we conclude that All...
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