Rogers v. Coronet Ins. Co.

• Decision Date: 29 October 1992
• Docket Number: No. A92A1492,A92A1492
• Citation: 206 Ga.App. 46,424 S.E.2d 338
• Parties: ROGERS et al. v. CORONET INSURANCE COMPANY et al.
• Court: Georgia Court of Appeals

Page 338

424 S.E.2d 338

206 Ga.App. 46

ROGERS et al. v. CORONET INSURANCE COMPANY et al.

No. A92A1492.

Court of Appeals of Georgia.

Oct. 29, 1992.

Gordon G. Greenhut, Decatur, for appellants.

Long, Weinberg, Ansley & Wheeler, Joseph W. Watkins, Atlanta, for appellees.

BIRDSONG, Presiding Judge.

Appellants appeal the order of the trial court granting appellee/defendant Dr. Manard, D.C. the right to open his default, granting his motion to dismiss and motion for summary judgment, and finding his motion to compel discovery moot. Pursuant to OCGA § 9-11-54(b), the order contained the determination and direction for final judgment.

In December 1989, appellants were in an automobile collision; appellant Rogers was driving, and appellant Vaughn and T. Niles (a minor who is represented b/n/f and guardian, S. Niles) were passengers. Appellants demanded no-fault benefits from Rogers' insurance policy, underwritten by appellees Coronet Insurance Company and Insurance Services Underwriters Inc. Appellee Manard is a licensed chiropractor employed by Howell Industrial Clinic, which operates the Center for Independent Medical Examination. As such, Dr. Manard performed independent chiropractic examinations upon appellants, pursuant to a request by the insurance company of appellant Trenton Rogers against whom appellants had filed personal injury protection (PIP) claims. Dr. Manard performed separate, independent chiropractic examinations on each appellant without consulting their x-rays or other medical records in the possession of appellants' chiropractor. Dr. Manard subsequently submitted reports to the insurance company concluding inter alia that while appellants were in pain they would not benefit from further treatment. The insurance company allegedly stopped PIP claim payments to appellants after receiving this report.

Appellants brought suit against Dr. Manard, the insurance company, and the insurance underwriters; attached to the original complaint is the affidavit of appellants' chiropractor. On the summons, appellants' counsel characterized the suit as being in "contract" and "medical malpractice." Appellee Manard filed his answer 35 days after service of summons and complaint, averring therein the affirmative defense of failure to state a claim upon which relief can be granted, and contemporaneously filed a motion to dismiss the original complaint. At this time appellee Manard, being unaware of the default, did not pay costs. Subsequently, appellants filed an amended complaint with an affidavit of their chiropractor attached; the amended complaint has the effect of making more definite the averments pertaining to the original claim and includes a new count of tortious interference with contract. Appellee Manard responded by filing a motion for summary judgment. The record reflects appellee was not aware of the default until approximately two months thereafter when appellants moved to strike his answer following the filing of the summary judgment motion. Appellee Manard moved to open default the day after learning of the motion to strike. Held:

1. Factual assertions in briefs not supported by evidence of record cannot be considered on appellate review. Behar v. Aero Med Intl., 185 Ga.App. 845, 847, 366 S.E.2d 223. Further, a brief or an attachment thereto cannot be used as a procedural vehicle for adding evidence to the record. Cotton States, etc., Ins. Co. v. Bogan, 194 Ga.App. 824, 826, 392 S.E.2d 33. Any argument or assertion, founded upon a particular portion of the evidence, must be supported by a reference to the page or pages in the transcript where the evidence may be found. Court of Appeals Rule 15(c)(3)(ii). It is not the function of this court to cull the record on behalf of a party in search of error. Manderson & Assoc. v. Gore, 193 Ga.App. 723, 733(8), 389 S.E.2d 251 citing Armech Svc. Co. v. Rose Elec. Co., 192 Ga.App. 829, 830, 386 S.E.2d 709. We will apply these well-settled rules of appellate procedure to this appeal.

2. On appeal the test to determine whether the trial court erred in opening default is not whether this court would have granted or denied the motion had it been ruling thereon at the trial level. OCGA § 9-11-55(b) allows prejudgment default to be opened on one of three grounds if four conditions are met. See generally Powell v. Eskins, 193 Ga.App. 144, 145, 387 S.E.2d 389. " '(T)he question of whether to open a default on one of the three grounds ... rests within the discretion of the trial judge.' " Id.

" ' "The rule permitting opening of default is remedial in nature and should be liberally applied (cit.), for default judgment is a drastic sanction that should be invoked only in extreme situations. (Cits.) Whenever possible cases should be decided on their merits for default judgment is not favored in law.... Generally, a default should be set aside where the defendant acts with reasonable promptness and alleges a meritorious defense." ' " (Emphasis supplied.) Evans v. Willis, 203 Ga.App. 699, 700, 418 S.E.2d 73. In determining whether a situation is extreme, among the factors which may be considered, but which will not standing alone authorize the opening of default pursuant to OCGA § 9-11-55(b), are: whether and how the opposing party will be prejudiced by opening the default (Powell, supra); whether the opposing party elected not to raise the default issue until after the time under OCGA § 9-11-55(a) had expired for the defaulting party to open default as a matter of right (Evans, supra); and whether the defaulting party acted promptly to open the default upon learning no answer had been either filed or timely filed (Cole v. Lucas, 201 Ga.App. 423, 424, 411 S.E.2d 284). Further, any additional delay occasioned by a failure to file promptly for opening default upon its discovery can be considered in determining whether defendants' neglect was excusable. Id. at 424, 411 S.E.2d 284.

Thus it appears, " '[t]he facts in each case are different and (the court) must look at each in the light of the facts peculiar to that particular case.' " Id. at 424, 411 S.E.2d 284. In this instance, evidence of record establishes counsel for appellees was unaware at the time he filed his answer that it had been filed 35 days after service. Appellee Manard had erroneously informed his counsel, apparently relying on an unexplained pencil notation appearing on his copy of the summons that process had been served on November 10, 1991, when in fact he had been served on November 5, 1991. Appellants did not raise the issue of default until February 1992, and appellees' counsel filed a motion to open default and paid costs the day after he became aware of the default. Further, notwithstanding trial court inquiry, appellants failed to establish any specific claim of prejudice that would inure from the opening of default. Compare Whitley v. Bank South, 185 Ga.App. 896(2), 366 S.E.2d 182.

The motion asserted "excusable neglect" and satisfied the four conditions of OCGA § 9-11-55(b). (In this regard, we find unpersuasive appellants' argument that appellees could not be ready to proceed with trial merely because a motion to dismiss and motion for summary judgment were pending, which the record reveals were scheduled for hearing, with appellants' acquiescence, immediately following resolution of the motion to open default.) The trial court found the existence of "excusable neglect" and granted the motion to open default. Under the existing circumstances, the record will not support a finding of abuse of discretion by the trial court. The enumeration is without merit.

3. Appellants assert the trial court erred in granting appellee Manard's motion to dismiss. We disagree.

The original and amended complaints on their face both failed to state a claim on which relief can be granted based upon professional malpractice. "[T]here can be no liability for malpractice [on the part of a chiropractor] in the absence of [a doctor]-patient relationship. '(T)here are three essential elements imposing liability upon which recovery is bottomed: (1) The duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained.' [Cits.] 'In such cases, called "classic medical malpractice actions" ..., doctor-patient privity is essential because it is this "relation ... which is a result of a consensual transaction" that establishes the legal duty to conform to a standard of conduct.' " Peace v. Weisman, 186 Ga.App. 697, 698(1), 368 S.E.2d 319. Moreover, the allegations in the complaints that appellee Manard "kept telling [appellants] that they were not in pain and no further chiropractic treatment was necessary to treat their injuries" would not per se give rise to a doctor-patient relationship nor otherwise establish special circumstances under which appellants could reasonably rely on such declarations as being uttered in the course of professional treatment. "There is nothing to suggest that [the transmittal of such admission seeking declarations] was inconsistent with the limited relationship between appellants and [appellee Manard]." Clough v. Lively, 193 Ga.App. 286, 288, 387 S.E.2d 573. Further, the complaint contains no averments that appellants relied upon these declarations as constituting a professional diagnosis to their physical detriment. " ' "No matter how innocent the plaintiff may be, he is not entitled to recover unless the defendant did something that (he) should not have done, or failed to do something that (he) should have done pursuant to the duty owed the plaintiff." (Cit.)' [Cit.]" Cechman v. Travis, 202 Ga.App. 255, 257(2), 414 S.E.2d 282. "In the absence of a physician-patient relationship, the appellee's only duty to [appellants] was to conduct the examination in such a manner as not to injure [them]" during the course thereof. Peace, supra, ...