Smith v. Atlantic Mutual Companies, A06A1966.
| Decision Date | 31 January 2007 |
| Docket Number | No. A06A1966.,A06A1966. |
| Citation | 283 Ga. App. 349,641 S.E.2d 586 |
| Parties | SMITH v. ATLANTIC MUTUAL COMPANIES. |
| Court | Georgia Court of Appeals |
Christopher J. Palazzola, Smith, White, Sharma & Halpern, Chamblee, for Appellant.
Douglas L. Brooks, Atlanta, for Appellee.
Atlantic Mutual Companies ("Atlantic"), as subrogee of its insured, filed suit against Matthew W. Smith seeking to recover the amount it paid to its insured as a result of an automobile accident allegedly caused by Smith. Smith appeals the trial court's grant of summary judgment in favor of Atlantic, alleging that the evidence was insufficient to support the judgment, that the trial court failed to address properly raised defenses regarding jurisdiction and service, and that Atlantic's motion for summary judgment failed to comply with Uniform Superior Court Rule 6.1. We agree and reverse.
On appeal from a grant of summary judgment, we conduct a de novo review of the evidence to determine if there exists a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, entitle the movant to judgment as a matter of law. Rubin v. Cello Corp., 235 Ga.App. 250, 250, 510 S.E.2d 541 (1998).
So viewed, the evidence shows that Atlantic filed a one-page complaint alleging that Smith was indebted to it "in the principal amount of $13,791.92" and that, despite Atlantic's demand, Smith had refused to make payment. Smith filed a pro se answer in which he denied liability, denied that jurisdiction and venue were proper, asserted several affirmative defenses, and asserted a counterclaim alleging that the negligence of Atlantic's insured had caused the automobile accident.
Atlantic's brief in support of its motion for summary judgment contained no legal argument or citation of authority, but instead set forth the same four paragraphs contained in the Statement of Undisputed Material Facts filed with the motion. Atlantic's pleadings alleged that Smith "was at fault in an automobile accident" involving Atlantic's insured and that Atlantic had paid its insured's claim and taken subrogation of the same against Smith. In support of its motion, Atlantic submitted the affidavit of William J. Holey, who stated that he was both the "Insurance Carrier" of Atlantic and the custodian of its business records. Holey's affidavit reiterates the allegations found in Atlantic's complaint. Attached to the affidavit as Exhibit "A" is a copy of an estimate for repairs to a damaged car and pictures of a damaged car. On the basis of this evidence, the trial court granted summary judgment in favor of Atlantic and awarded it $18,629.67 in damages and interest.
1. Smith alleges that the trial court improperly granted summary judgment based upon the evidence before it. (Emphasis supplied.) Crown Ford v. Crawford, 221 Ga.App. 881, 882, 473 S.E.2d 554 (1996). Even assuming that Atlantic satisfied the first requirement, it failed to show that it was entitled to judgment as a matter of law.
We first note that Atlantic has not produced a copy of the alleged insurance policy, any evidence showing that it had paid a claim under that policy, or any document demonstrating that its insured had assigned any claim it had against Smith to Atlantic. Moreover, while Atlantic asserted, both in its pleadings and via the affidavit of Mr. Holey, that Smith caused the underlying automobile accident, it failed to produce any evidence to support this assertion. Mr. Holey's affidavit sets forth no facts on which he bases his conclusion regarding Mr. Smith's fault. Atlantic did not attach to its complaint or its summary judgment motion an accident report, a traffic citation issued as a result of the alleged accident, or the affidavit of its insured describing the accident. Devoid entirely of any information regarding the accident giving rise to this case, the record cannot support the conclusion that Smith was at fault.
A similar deficiency exists with respect to Atlantic's claim for damages. There is nothing in Mr. Holey's affidavit or the exhibit attached thereto which shows that the attached estimate is for a car belonging to its insured, or that the damage resulted from an accident in which Smith was involved. Nor is there any evidence...
To continue reading
Request your trial
-
B–t Two Inc. v. Bennett.
...of law. See OCGA § 9–11–56(c); see also Marcum v. Gardner, 283 Ga.App. 453, 454, 641 S.E.2d 678 (2007); Smith v. Atlantic Mut. Cos., 283 Ga.App. 349, 350, 641 S.E.2d 586 (2007). We review the denial of a motion for summary judgment de novo. And on appeal, we assess the record evidence in th......
-
Cohen v. Rogers
...the issue had been decided by default. Just as “[t]here is ‘no such thing as a default summary judgment,’ ” Smith v. Atlantic Mut. Cos. , 283 Ga.App. 349, 351, 641 S.E.2d 586 (2007) (citation and punctuation omitted), there is no such thing as a default attorney disqualification. Motions fo......
-
Estate of Ryan v. Shuman, A07A0833.
...the light most favorable to the nonmoving party, entitle the movant to judgment as a matter of law. [Cit.]" Smith v. Atlantic Mut. Cos., 283 Ga. App. 349, 350, 641 S.E.2d 586 (2007). So viewed, the evidence shows that Shuman was a friend of Anthony Ryan, Jr., who served as the initial execu......
-
Montague v. Godfrey, A07A2392.
... ... See Smith v. Atlantic Mut. Cos., 283 Ga.App. 349, 351-352(2), 641 ... ...
-
Zoning and Land Use Law - Dennis J. Webb, Jr., Marcia Mccrory Ernst, Joseph L. Cooley, John Chadwick Torri, and Victor A. Ellis
...at 810. 55. 545 U.S. 469 (2005). 56. O.C.G.A. Sec. 36-61-1 to -19 (2006). 57. 283 Ga. App. 343, 641 S.E.2d 584 (2007). 58. Id. at 345, 641 S.E.2d at 586. 59. Id. at 343-44, 641 S.E.2d at 585. 60. Id. at 344, 641 S.E.2d at 585. 61. Id. 62. Id. at 343, 641 S.E.2d at 585. 63. Id. at 344, 641 S......
-
Real Property - Linda S. Finley
...(2007). 55. Id. at 343-44, 641 S.E.2d at 585. 56. Id. at 343, 641 S.E.2d at 585. 57. Id. at 344, 641 S.E.2d at 585. 58. Id. 59. Id., 641 S.E.2d at 586. 60. O.C.G.A. Sec. 22-2-102.2(1), (5) (Supp. 2007). 61. Meeks, 283 Ga. App. at 345, 641 S.E.2d at 586. 62. Id. 63. 285 Ga. App. 58, 646 S.E.......