Yim v. Carr

• Court: Georgia Court of Appeals
• Writing for the Court: Barnes, Presiding Judge.
• Citation: Yim v. Carr, 349 Ga.App. 892, 827 S.E.2d 685 (Ga. App. 2019)
• Decision Date: 23 April 2019
• Docket Number: A19A0715, A19A0716.
• Parties: YIM et al. v. CARR; and vice versa.

349 Ga.App. 892

827 S.E.2d 685

YIM et al.

v.CARR; and vice versa.

A19A0715, A19A0716.

Court of Appeals of Georgia.

April 23, 2019

Kathleen Marie Hurley, Candice R. Bryant, Norcross, Joseph Robb Cruser, for Appellants in A19A0715 and Appellees in A19A0716.

J. Matthew Dwyer Jr., James Andrew Neuberger, Atlanta, for Appellee in A19A0715 and Appellant in A19A0716.

Barnes, Presiding Judge.

These companion appeals arise out of an automobile collision involving Patricia Ann Carr and Jenny Jung Ah Yim ("Yim"). Following the collision, Carr sued Yim for negligence and her parents, Bok and John Yim (collectively, the "parents"), under theories of vicarious liability.¹ Yim thereafter filed a motion to enforce a settlement agreement allegedly entered into by her insurer and Carr, and her parents filed motions for summary judgment on the vicarious liability claims brought against them. After conducting hearings on the motions, the trial court granted Yim’s motion to enforce the settlement agreement and denied her parents’ motions for summary judgment. The trial court granted the parents a certificate of immediate review from the denial of their summary judgment motions, and they filed an application for interlocutory appeal. This Court granted the application, leading to the parents’ appeal of the trial court’s order denying their motions for summary judgment in Case No. A19A0715. In Case No. A19A0716, Carr cross-appeals from the trial court’s order granting Yim’s motion to enforce the settlement agreement.

Because the uncontroverted evidence of record shows that Yim’s parents could not be held vicariously liable for Yim’s alleged negligence under the family purpose doctrine or the doctrine of respondeat superior, we reverse the trial court’s denial of the parents’ motions for summary judgment in Case No. A19A0715. Because there was no unequivocal acceptance of the settlement offer that Carr made to Yim’s insurer, no binding settlement agreement was formed, and we therefore reverse the trial court’s grant of Yim’s motion to enforce the settlement agreement in Case No. A19A0716.

Case No. A19A0715

1. The parents contend that the trial court erred in denying their motions for summary judgment.

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." OCGA § 9-11-56 (c). In reviewing the denial of a summary judgment motion, "we owe no deference to the trial court’s ruling and we review de novo both the evidence and the trial court’s legal conclusions. Moreover, we construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion." (Citations and punctuation omitted.) Bryant v. Optima Intl. , 339 Ga. App. 696, 696, 792 S.E.2d 489 (2016).

A defendant demonstrates entitlement to summary judgment by showing that the record lacks evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case. The defendant does not need to affirmatively disprove the plaintiff’s case, but may prevail simply by pointing to the lack of evidence. If the defendant does so, the plaintiff cannot rest on his pleadings, but must point to specific evidence that gives rise to a triable issue of fact.

(Punctuation and footnote omitted.) Meadows v. Diverse Power , 296 Ga. App. 671, 671, 675 S.E.2d 571 (2009).

Construed in favor of Carr as the non-moving party, the evidence shows that on the morning of April 14, 2016, Yim and Carr were involved in a two-car collision on West Paces Ferry Road. At the time, Yim was 28 years old, lived with her parents, and was driving a 2014 Hyundai Sonata that she co-owned with her mother. Yim’s mother had co-signed the car note so that Yim could obtain a loan to pay for the vehicle, and the automobile insurance policy was in the names of Yim’s parents. Yim gave her father the money for each loan payment, and he would write a check to the lender. Yim also reimbursed her father for the insurance premiums, and she paid for all of the vehicle’s gasoline and maintenance. Yim had sole possession of the car keys and did not need her parents’ permission to use the car. Her parents never drove the vehicle. They testified that the car belonged to Yim, that she was an adult who made her own decisions, and that they did not control whether she drove it.

Yim worked for her father’s cleaning company at a location off of West Paces Ferry Road. However, in her affidavit, Yim averred that at the time of the accident, she was "traveling to do volunteer work of [her] own choosing" and was not acting as an agent of her father. During her deposition, Yim denied that she was on her way to work for her father on the day of the accident, testified that she would search online to find volunteer opportunities with various organizations, and reiterated that she "was going to volunteer" for such an organization when the accident occurred. In an affidavit, Yim’s father averred that Yim "was not performing any task or errand for [him]" at the time of the accident. The father testified in his deposition that he had not known where Yim was going that morning and had been asleep when she left the house. During her deposition, Yim’s mother denied that Yim had been "going somewhere to do something for [her] husband’s company at the time of the crash."

In his motion for summary judgment, Yim’s father argued that he had no ownership interest in the car and exercised no control or authority over it, and in her motion for summary judgment, Yim’s mother argued that she had no control or authority over the vehicle. Carr opposed the motions, arguing that there were genuine issues of material fact as to whether Yim’s parents could be held vicariously liable under the family purpose doctrine and/or the doctrine of respondeat superior. Following a hearing, the trial court denied the parents’ motions for summary judgment, stating that there were genuine issues of material fact as to whether they could be held vicariously liable for Yim’s alleged negligence based on the family purpose doctrine and the doctrine of respondeat superior.

(a) The parents contend that the uncontroverted evidence of record demonstrates that they cannot be held vicariously liable for

Yim’s alleged negligence under the family purpose doctrine. We agree.

The family purpose doctrine in Georgia provides that every person shall be liable for torts committed by his child by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily. Thus, when an automobile is maintained by the owner for the use and convenience of his family, such owner is liable for the negligence of a member of the family having authority to drive the car while it is being used for a family purpose. To impose vicarious liability under the family purpose doctrine requires a two step process. First, the following four preconditions must be found present: (1) the owner of the vehicle must have given permission to a family member to drive the vehicle; (2) the vehicle’s owner must have relinquished control of the vehicle to the family member; (3) the family member must be in the vehicle; and (4) the vehicle must be engaged in a family purpose. Second, and only after the above four necessary preconditions have been satisfied, the doctrine renders the defendant vicariously liable if defendant had the right to exercise such authority and control that it may be concluded that an agency relationship existed between defendant and the family member with respect to the use of the vehicle.

(Punctuation, footnotes, and emphasis omitted.) Dashtpeyma v. Wade , 285 Ga. App. 361, 362-363 (2), 646 S.E.2d 335 (2007).² See OCGA § 51-2-2. "[T]he mere fact that a vehicle is registered in the head of the household’s name and driven by a family member does not, by itself, establish that the family purpose doctrine is applicable." (Punctuation omitted.) Bailey v. Butler , 199 Ga. App. 753, 754, 406 S.E.2d 97 (1991). "[T]he principal factor is authority and control of the vehicle, and this is not necessarily determined by title to the vehicle or payment for the expenses of operation. Agency, not ownership, is the test of liability." (Citations and punctuation omitted.) Walston v. White , 213 Ga. App. 441, 442, 444 S.E.2d 855 (1994).

In the present case, pretermitting whether any of the four initial factors are present, we conclude that the family purpose doctrine is not applicable because the uncontroverted evidence shows that Yim’s parents did not have the requisite authority and control over her use of the 2014 Hyundai Sonata involved in the automobile collision. It is true that Yim’s mother was a joint owner of the vehicle and co-signed the car note, and that the insurance policy on the vehicle was in the parents’ names. But, the evidence also undisputedly demonstrates that Yim was employed, that she gave her father the money to make the loan payments, that she reimbursed him for the insurance premiums, and that she paid all of the gasoline and maintenance expenses for the vehicle. Additionally, the uncontroverted evidence reflects that Yim did not have to obtain her parents’ permission to drive the car, was the car’s only driver, and had sole possession of the keys. Based on the parents’ affidavits and deposition testimony, it also is clear that they considered the car to belong to Yim and did not feel that they could deprive her of its use.

In previous decisions involving similar facts, we concluded that the family purpose doctrine did not apply. For example, in Bailey , 199 Ga. App. 753, 406 S.E.2d 97, the car’s title and insurance were in the mother’s name, but the son was financially responsible for the car and was its sole user. Id. at 753, 406 S.E.2d 97. We ruled that "the...