Rossee Oil Co., Inc. v. BellSouth Telecommunications, Inc.
| Decision Date | 14 February 1994 |
| Citation | 441 S.E.2d 464,212 Ga.App. 235 |
| Parties | ROSSEE OIL COMPANY, INC. v. BELLSOUTH TELECOMMUNICATIONS, INC. A93A2559. |
| Court | Georgia Court of Appeals |
Martin L. Fierman, Eatonton, for appellant.
Rhona E. Reynolds, Atlanta, for appellee.
Rossee Oil Company, Inc. ("Rossee") brought an action against BellSouth Telecommunications, Inc. ("BellSouth"), alleging that BellSouth entered its property without authority and buried telephone cable; that BellSouth's willful and wanton trespass warrants exemplary damages and that BellSouth's bad faith authorizes attorney fees and expenses of litigation. BellSouth moved for summary judgment on Rossee's claims for punitive damages, attorney fees and expenses of litigation, arguing that Rossee is entitled to only such damages as would be authorized in a condemnation proceeding; that punitive damages and expenses of litigation are not authorized where a public service company encroaches upon land for the good of the public and that "no independent ground for punitive damages exists [because Rossee failed to] prove by clear and convincing evidence that [BellSouth's] actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences."
In support of BellSouth's motion for summary judgment, Mitchell J. Anderson deposed that he is the BellSouth engineer responsible for placement of telephone cable on Rossee's property and that he was "under the belief that the DOT right-of-way encompassed the property upon which [BellSouth's] cable was to be located ..." because "the DOT representative informed me that there would be no conflicts at that location and that it would be fine for us to relocate there." In opposition, M.S. Rainey deposed that he is the president of Rossee; that BellSouth did not have permission to bury cable on Rossee's property; that he had no knowledge of BellSouth's activities on Rossee's property until at least eight days (April 19, 1991) after burial of the cable was complete; that Mitchell J. Anderson then assured him that the cable would be removed from Rossee's property and that BellSouth failed to honor this assurance. 1
The trial court granted BellSouth's motion for summary judgment with regard to punitive damages, attorney fees and expenses of litigation. This appeal followed. Held:
In Oglethorpe Power Corp. v. Sheriff, 210 Ga.App. 299, 436 S.E.2d 14, this Court affirmed that punitive damages are available in an action against a public utility corporation for intentional conversion and trespass to realty. Id. at 302(5), 436 S.E.2d 14, supra, certiorari denied by the Supreme Court of the State of Georgia (Case No. S94C0046, decided December 3, 1993). We find no authority precluding such damages against a public service company such as BellSouth where there exists clear and convincing evidence from which a jury could find that BellSouth's actions in committing the intentional tort showed one or more of the criteria for the award of punitive damages as stated in OCGA § 51-12-5.1(b), "particularly 'that entire want of care which would raise the presumption of conscious...
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