Morrison v. Kicklighter

329 Ga.App. 630

765 S.E.2d 774

MORRISON et al.

v.KICKLIGHTER.

No. A14A0945.

Court of Appeals of Georgia.

Nov. 14, 2014.

Brooks Law Firm, Eugene C. Brooks IV, Savannah, for Appellants.

Brennan, Harris & Rominger, Mason White, for Appellee.

Opinion

ANDREWS, Presiding Judge.

Charles, Suzette, and Thomas Morrison sued Steve Kicklighter to recover property damage allegedly caused when Kicklighter negligently backed his vehicle into the Morrisons' parked truck. The Morrisons sought to recover the cost of repairing damage to the truck, the diminished value of the repaired truck, and the cost of a rental vehicle during the repairs. On the basis that these losses were covered by a liability insurance policy on Kicklighter's vehicle issued by State Farm Mutual Automobile Insurance Company, the Morrisons also brought the action pursuant to OCGA § 33–4–7 against State Farm (as an unnamed party) seeking to recover penalties and attorney fees against State Farm for allegedly failing to make a good faith effort to adjust and settle their pre-trial demand for payment of the covered losses.¹

Under OCGA § 33–4–7(d),

... The insurer shall be an unnamed party, not disclosed to the jury, until there has been a verdict resulting in recovery equal to or in excess of the claimant's demand. If that occurs, the trial shall be recommenced in order for the trier of fact to receive evidence to make a determination as to whether bad faith existed in the handling or adjustment of the attempted settlement of the claim or action in question.

The trial was not recommenced for the second phase under this provision to consider the Morrisons' bad faith claim against State Farm because the jury rendered a verdict in favor of Kicklighter on the property damage claims, and the Morrisons recovered nothing. The Morrisons appeal from the trial court's denial of their motion for a new trial. Because we conclude that the verdict lacks any evidentiary support and was contrary to law, we reverse.

1. The Morrisons claim that there was no evidentiary basis for the verdict in favor of Kicklighter, and that the trial court erred by denying their motion for a new trial made on the general grounds. See OCGA §§ 5–5–20 ; 5–5–21.

On appeal from the trial court's denial of a motion for a new trial on the general grounds set forth in OCGA §§ 5–5–20 (verdict contrary to evidence and principles of justice and equity) or 5–5–21 (verdict strongly against weight of evidence), the appellate court has no discretion to grant a new trial on that ground; “we can only review the evidence to determine if there is any evidence to support the verdict.” Cook v. Huff, 274 Ga. 186, 186(1), 552 S.E.2d 83 (2001) (punctuation and citation omitted); Drake v. State, 241 Ga. 583, 585, 247 S.E.2d 57 (1978).

The standard of appellate review of the denial of a motion for new trial on the general grounds is essentially the same as that applicable to the denial of a motion for directed verdict or judgment n.o.v. The appellate courts can only set a verdict aside, on evidentiary grounds, as being contrary to law in that it lacks any evidence by which it could be supported.

Cook, 274 Ga. at 186, 552 S.E.2d 83 (punctuation and citations omitted).

Kicklighter admitted liability for damages caused when he negligently backed his vehicle into the Morrisons' parked truck, and the only issue in the first phase of the trial was the Morrisons' claims for amounts due on three elements of damage: (1) the cost of repairing the truck, (2) the diminished value of the repaired truck, and (3) the cost of a rental vehicle during the repairs. The Morrisons presented evidence establishing the dollar amounts they claimed were incurred on each of the three elements of damage. In response, Kicklighter's defense was not that the Morrisons incurred no damage as a result of his negligence; rather, he presented evidence of lesser dollar amounts of damage incurred by the Morrisons on each of the three elements. Because the undisputed evidence showed that Kicklighter negligently caused the Morrisons to incur damages in some amount, there was no evidentiary support for the jury's verdict in favor of Kicklighter, and the verdict was contrary to law and must be set aside. The trial court erred by denying the motion for a new trial.

2. We address additional enumerations of error on issues likely to recur in the event of a retrial.

(a) In support of their repair costs, the Morrisons presented testimony from the manager of the automobile collision repair shop where the truck was repaired identifying published industry standards for collision repair, automobile manufacturer repair standards, and paint manufacturer standards, and stating that the repair work complied with the standards. The trial court refused to admit the standards as documentary evidence and sustained Kicklighter's objection that the documents contained hearsay. Where identified and explained by expert testimony, industry standards relied upon by persons in the witness's particular occupation are admissible, and are not excluded by the hearsay rule. Dayoub v. Yates–Astro Termite Pest Control Co., 239 Ga.App. 578, 581–582, 521 S.E.2d 600 (1999) ; OCGA § 24–8–803(17). The trial court erred by sustaining the hearsay objection.

(b) Where a repair shop employee testified that she had no personal knowledge of actual repairs done to the truck, the trial court did not err by sustaining Kicklighter's hearsay objection and refusing to allow the employee to testify that specific repairs to the truck were reasonable or necessary.

(c) To show that the diminished value of the repaired truck was less than the amount claimed by the Morrisons, Kicklighter produced testimony from a witness (a State Farm employee) as to...