McLeod v. Pruco Life Ins. Co.

• Court: Georgia Court of Appeals
• Writing for the Court: McMURRAY; POPE, C.J., and SMITH
• Citation: McLeod v. Pruco Life Ins. Co., 449 S.E.2d 895, 215 Ga.App. 177 (Ga. App. 1994)
• Decision Date: 27 October 1994
• Docket Number: No. A94A2367,A94A2367
• Parties: McLEOD v. PRUCO LIFE INSURANCE COMPANY et al.

Page 895

449 S.E.2d 895

215 Ga.App. 177

McLEOD v. PRUCO LIFE INSURANCE COMPANY et al.

No. A94A2367.

Court of Appeals of Georgia.

Oct. 27, 1994.

Reconsideration Denied Nov. 10, 1994.

Nick Long & Associates, Darryl S. Marmon, Atlanta, for appellant.

Carter & Ansley, Thomas E. Magill, Keith L. Lindsay, Atlanta, for appellees.

McMURRAY, Presiding Judge.

Plaintiff Kermit McLeod brought this action against defendant Insignia Management Group and its insurer, defendant Pruco Life Insurance Company, alleging that on May 16, 1991, "Joan F. Chernekau [sic], as agent for [defendants], directed the City of Atlanta Police Department to arrest plaintiff for theft by taking of ... $561 in cash ..." from the management office of the apartment building where plaintiff was employed. "Plaintiff was arrested, handcuffed and taken to the Atlanta City Police Department where he was interrogated and subsequently released." After a hearing in the Atlanta Municipal Court, "the prosecution was terminated in favor of the plaintiff because there was no probable cause ... [for plaintiff's arrest]." Defendants denied the material allegations and, after a period of discovery, moved for summary judgment on the ground that plaintiff's arrest was the independent decision of the police officer, Detective Ron K. English.

Viewed in the light most favorable to plaintiff as the nonmovant, the record shows that Ms. Joan Schernekau, Ms. Tanya Smith, and plaintiff worked for Brookwood Valley Apartments. These apartments are owned by defendant Pruco Life Insurance Company and managed by defendant Insignia Management Group, L.P. At all pertinent times, Ms. Schernekau was the office manager of Brookwood Valley Apartments, Ms. Smith was a leasing agent, and plaintiff was a porter. On May 16, 1991, Ms. Smith reported to Ms. Schernekau that $561 in cash was missing from her desk. All employees, plaintiff included, emptied their pockets but the cash was not recovered. Ms. Schernekau reported this loss to the police the next day. At deposition, plaintiff testified that he was interviewed at work by two (unnamed) detectives from the Atlanta Police Department one week after the theft was discovered. During this interview, Ms. Schernekau approached one of the officers. Plaintiff overheard her as she queried whether plaintiff would be "[taken] to jail or [given] a subpoena[, saying,] It couldn't have been no one else but him.... Either you give him a subpoena or take him to jail anyway because he's leaving [defendant's apartment] complex today." When this officer returned, "[h]e handcuffed [plaintiff] and walked [him] out the door." Plaintiff "asked why [and was told]: Because Joan said it couldn't have been no one else but you, directly to jail, do not pass go, do not get $200." However, plaintiff conceded that "no one from Brookwood accused [him] directly nor [had he heard] from anyone else that anyone from Brookwood accused [him]."

In support of their motion for summary judgment, defendants introduced the affidavit of the arresting officer, Detective Ron K. English of the Atlanta Police Department. He deposed that Ms. Joan Schernekau and Ms. Tanya Smith reported to him that a deposit of $561 had been left in Ms. Smith's office and that while these two "were outside the office in the front of the apartments, ... they observed Mr. McLeod coming from the back office area where [Ms. Smith's] office is situated." According to detective English, "[t]he gist of both [witnesses'] statements indicated that it seemed to Ms. Smith and Ms. Schernekau that no one, other than plaintiff, had access to the missing money between the time it was last seen and the time it was discovered missing." Nevertheless, "[a]t no time did Ms. Smith or Ms. Schernekau or anyone from Brookwood Valley Apartments ever directly accuse [plaintiff] of taking the money, nor did they unduly influence me to charge [plaintiff] or prosecute him." Finally, Detective English deposed that "[t]he decision to charge [plaintiff] was made by [Detective English] acting independently in [his] profession as an investigator based upon [his] experience combined with the facts as revealed to [him] by the witnesses and the circumstantial evidence which indicated that [plaintiff] had been the only person who had access to the funds [at the pertinent times]." In a subsequent affidavit, Detective English deposed that "[he] would not have arrested [plaintiff] were it not for the statements of Ms. Schernekau and Ms. Smith that [plaintiff] was the only person who had access to the money at the time of the theft." Ms. Schernekau testified that, "[i]t was a police decision [to arrest plaintiff]." She conceded the possibility "that someone could have come in the side door and taken the money without [her] seeing them" although she thought that "would have been very difficult...." The charge against plaintiff was dismissed, upon a determination that there was no probable cause, after a hearing at which Ms....