St. Paul Reinsurance Co., Ltd. v. Ross, No. A03A2304.

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: Bernes
• Citation: 622 S.E.2d 374,276 Ga. App. 135
• Parties: ST. PAUL REINSURANCE COMPANY, LTD. v. ROSS et al.; and vice versa.
• Decision Date: 28 September 2005
• Docket Number: No. A03A2305.,No. A03A2304.

276 Ga. App. 135 622 S.E.2d 374 ST. PAUL REINSURANCE COMPANY, LTD.
v.
ROSS et al.; and vice versa. No. A03A2304. No. A03A2305. Court of Appeals of Georgia. September 28, 2005. Reconsideration denied October 31, 2005.

Page 375

Goetz, Allen & Zahler, David Webster, Charles Goetz, Jr., Atlanta, for Appellant.

Willace Magee, Decatur, for Appellee.

BERNES, Judge.

In Ross v. St. Paul Reinsurance Co., 279 Ga. 92, 610 S.E.2d 57 (2005), the Supreme Court of Georgia reversed our previous decision in these consolidated appeals arising out of a garnishment action brought by Shirley and Ronald Ross against St. Paul Reinsurance Company, Ltd. in the State Court of DeKalb County. See St. Paul Reinsurance Co. v. Ross, 266 Ga.App. 75, 596 S.E.2d 193 (2004). In reversing this Court, the Supreme Court held that a tort judgment creditor has standing to bring a garnishment action seeking recovery of all or part of the judgment from the insurer of the tort judgment debtor. Accordingly, our previous opinion and judgment is vacated and set aside, and the decision of the Supreme Court is hereby made the decision of this Court as to the issue of standing. However, "[t]he [276 Ga. App. 136] issues submitted by the remaining enumerations of error which were rendered moot by our previous decision are reopened by the decision of the Supreme Court." Stevens v. Wakefield, 163 Ga.App. 40, 292 S.E.2d 516 (1982). See also St. Paul Fire, etc., Ins. Co. v. Clark, 255 Ga.App. 14, 19(2)(c), 566 S.E.2d 2 (2002) (en banc). We address the remaining enumerations below, namely, whether the trial court erred (1) in concluding that the liability insurance policy issued to Jeff Akhtar did not exclude from coverage the Rosses'

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claim predicated on the shooting of Ronald Ross and (2) in calculating post-judgment interest.¹ We affirm the trial court's ruling as to the first issue, but reverse as to the second.

The basic facts and history surrounding this garnishment action, which has been before us on multiple occasions, are as follows.² On May 5, 1998, the Rosses brought a personal injury action against Akhtar for, inter alia, negligent failure to prevent physical injury to Ronald Ross after he was shot by a stray bullet in the parking lot of a nightclub owned by Akhtar. After the lawsuit commenced, Akhtar declared bankruptcy, and the Rosses and Akhtar agreed to entry of a consent judgment. Consequently, on June 29, 1999, the trial court entered a final judgment by consent on the Rosses' negligence claim against Akhtar in the amount of 500,000 in compensatory damages.³

Akhtar and his nightclub were insured to the extent of 300,000 under a liability insurance policy issued by St. Paul Reinsurance Company. However, St. Paul denied coverage for the shooting incident and informed Akhtar that it would not defend him in the underlying personal injury action or indemnify him for any damages recovered by the Rosses based on an assault and battery exclusion [276 Ga. App. 137] contained in the liability policy. St. Paul did not file a declaratory judgment action to resolve the coverage issue during the pendency of the personal injury action.

Subsequently, on August 11, 1999, the Rosses brought the instant garnishment action against St. Paul, contending that St. Paul was indebted to them on the 500,000 consent judgment because the shooting was covered by the liability policy. St. Paul answered, denying indebtedness, and filed a motion to dismiss, or alternatively, a motion for summary judgment,⁴ on the ground that the shooting arose out of an assault and battery and, therefore, was excluded from liability coverage. The Rosses filed a traverse to St. Paul's answer. On February 18, 2000, the trial court held an evidentiary hearing on St. Paul's motion for summary judgment and the Rosses' traverse.

On June 13, 2000, the trial court entered an amended order denying St. Paul's motion for summary judgment and granting the Rosses' traverse, finding that "the damages for which the insured defendant, Jeff Akhtar, became liable in this case were not excluded from the garnishee's insurance policy." However, the June 13, 2000 Order did not spell out the dollar amount that was subject to garnishment. On April 18, 2003, the trial court entered a new order stating that it had reconsidered its June 13, 2000 Order and had "found that order to be final." The trial court went on to state for the first time in an order that the Rosses were entitled to collect 300,000 from St. Paul, the liability policy limit. The trial court subsequently ordered post-judgment interest on the 300,000, running from June 13, 2000.

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On May 19, 2003, St. Paul filed an application for discretionary review with this Court, arguing that it had timely appealed from the true final judgment entered by the trial court on April 18, 2003. We granted St. Paul's discretionary application. The Rosses filed a motion to dismiss, arguing that St. Paul's application was untimely because final judgment had been entered on June 13, 2000, and St. Paul was estopped from arguing otherwise. We denied the Rosses' motion to dismiss.

On appeal, St. Paul argued in Case No. A03A2304 that the trial court erred by (a) holding that the Rosses had standing to pursue St. Paul in a garnishment action; (b) finding that the assault and battery exclusion did not bar coverage of the shooting; and (c) awarding post-judgment interest running from June 13, 2000, since no final judgment had been entered on that date. The Rosses cross-appealed in Case No. A03A2305, contending that the trial court erred in its [276 Ga. App. 138] award of interest because (a) interest should have run from entry of the June 29, 1999 consent judgment in the underlying personal injury action, and (b) interest should have been calculated on the amount of the consent judgment (500,000), not the liability policy limit (300,000). The appeal and cross-appeal were consolidated before this Court.

With two panel members dissenting, this Court held that the Rosses did not have standing to pursue St. Paul in a garnishment action and, therefore, that the remaining enumerations of error set forth in the appeal and cross-appeal were moot. St. Paul Reinsurance Co., 266 Ga.App. at 78-79, 596 S.E.2d 193. However, in a footnote, this Court did reiterate that the June 13, 2000 Order did not constitute a final judgment because it "left the amount of garnishment unresolved." Id. at 77, n. 1, 596 S.E.2d 193.

The Supreme Court granted certiorari and stated that it was particularly concerned with two questions: whether this Court had jurisdiction to hear St. Paul's application for discretionary review, and whether the Rosses had standing to bring a garnishment action against St. Paul. In its subsequent opinion, the Supreme Court remained silent on the jurisdictional issue and discussed only whether the Rosses had standing, expressly reversing this Court on that issue. See Ross, 279 Ga. at 92-94, 610 S.E.2d 57.

We now address the remaining enumerations of error set forth in St. Paul's appeal and the Rosses' cross-appeal that have been reopened by the Supreme Court's decision. In particular, we consider whether the trial court erred in its decision that the assault and battery exclusion did not bar coverage of the shooting under the liability policy and in its award of post-judgment interest.⁵

1. St. Paul argues that the trial court erred in concluding that the assault and battery exclusion did not bar coverage of Ross' shooting under the liability policy.⁶ The trial court reached its conclusion in the context of an evidentiary hearing on St. Paul's motion for summary judgment and the Rosses' traverse. See Jefferson Ins. Co., etc. v. Dunn, [276 Ga. App. 139] 269 Ga. 213, 215, 496 S.E.2d 696 (1998) (discussing test for determining whether insurance policy exclusion applies); Eady v. Capitol Indem. Corp., 232 Ga.App. 711, 714, 502 S.E.2d 514 (1998) (same). Significantly, the transcript of the evidentiary hearing appears nowhere in the record. Nor has St. Paul utilized any of the alternative procedures set forth in OCGA § 5-6-41 for

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circumstances where a transcript is unavailable.

Without access to the hearing transcript, we cannot determine whether evidentiary submissions, stipulations, or statements in place by counsel were tendered at the hearing. Without this knowledge, we cannot adequately address [St. Paul's claim of error] on appeal. The burden is on an appellant to show error by the record, and when a portion of the record which is necessary for our determination of one or more appellate issues is not before the court, the trial court's express or implicit ruling as to those issues must be affirmed.

Gill v. B & R Intl., 234 Ga.App. 528, 531(1)(c), 507 S.E.2d 477 (1998). "Without a transcript of the testimony below, we cannot review the basis for the [trial court's] finding[s]." Sampson v. Intellectual Technologies, 242 Ga.App. 493, 494(2), 529 S.E.2d 921 (2000). Thus, we are unable to review St. Paul's claim of error. Lott v. Arrington & Hollowell, P.C., 258 Ga.App. 51, 53-54(1), 572 S.E.2d 664 (2002).

Nevertheless, quoting Bates v. Guaranty Nat. Ins. Co., 223 Ga.App. 11, 14(2), 476 S.E.2d 797 (1996), St. Paul argues that the hearing transcript is not necessary because "the allegations of the complaint [brought against the insured] provide the basis for determining whether liability exists under the terms of the insurance policy." But, Bates does not hold or suggest that the allegations in the underlying tort complaint brought against the insured provide the sole basis for determining whether an insurance policy exclusion applies. Rather, Bates simply holds that an insurer can meet its initial burden of showing that a policy exclusion applies by relying on the allegations of the underlying complaint; the burden then shifts to the party seeking coverage under the policy to come forward with other evidence creating a genuine issue of...