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Lawskills.com Georgia Caselaw
MALLARD v. JENKINS et al.
75686.
POPE, Judge.
Action for damages. Macon Superior Court. Before Judge Gibson.
Plaintiff initiated this lawsuit against defendants Jenkins and Witchard seeking damages for personal injuries incurred in an automobile collision. Defendants responded in part by asserting that plaintiff had executed a general release of all claims in favor of defendants. See Mallard v. Jenkins, 179 Ga. App. 582 (347 SE2d 339) (1986). Plaintiff amended her complaint to add a claim for punitive damages alleging that the release had been fraudulently obtained. Plaintiff subsequently added Allstate Insurance Company as a party defendant and asserted the wilful and intentional misrepresentations of its agent in procuring plaintiff's execution of the release. Plaintiff then dismissed her claim for punitive damages against defendants Jenkins and Witchard. The case proceeded to a bifurcated jury trial involving only plaintiff and defendant Allstate, and, following the presentation of plaintiff's case, the trial court granted Allstate's motion for partial directed verdict on the issue of Allstate's liability for "vindictive" damages, finding that such damages are not recoverable by the plaintiff as a matter of law under the circumstances in this case. The jury was unable to reach a verdict on the other issues in the case and a mistrial was declared. We granted plaintiff's interlocutory appeal from the partial directed verdict in favor of Allstate.
1. The primary issue presented by this appeal is whether OCGA 51-12-6 is the proper measure of damages with respect to the claim plaintiff has raised against defendant Allstate. Plaintiff's claim charges that "[t]he fraudulent conduct and bad faith shown by Allstate Insurance Co. was intended and in fact has resulted in an interference with plaintiff's legal rights to seek compensation for general and special damages resulting from her injuries, thereby intentionally inflicting upon plaintiff severe mental anxiety and distress for which plaintiff seeks compensation." This claim for damages under OCGA 51-12-6 is reiterated in the pretrial order.
The apparent basis for defendant Allstate's motion for directed verdict is its assertion that OCGA 51-12-6 is an improper measure of damages due to the fact that it is applicable only where the entire injury is to the plaintiff's peace, feelings or happiness. Allstate argues that since plaintiff is still claiming that she is entitled to pursue her personal injury case against defendants Jenkins and Witchard, it is clear that the entire injury is not to plaintiff's peace, feelings and happiness. We do not find this argument compelling.
at 298. We are aware of no authority supporting the proposition that plaintiff's consolidation of collateral matters into one lawsuit necessarily precludes recovery of OCGA 51-12-6 damages where otherwise appropriate. The trial court erred in granting defendant Allstate's motion for directed verdict.
2. We are also asked to address the applicability of the Tort Reform Act of 1987, which made substantial changes in OCGA 51-12-5 and 51-12-6 and created new OCGA 51-12-5.1. Ga. L. 1987, p. 915, 4, 5 and 6. These code sections must be construed together. See Westview Cemetery v. Blanchard, 234 Ga. 540, 543 (216 SE2d 776) (1975). Since the amended OCGA 51-12-5 and the new 51-12-5.1 apply only to causes of action arising on or after July 1, 1987, we view the amended 51-12-6 (which makes express reference to these "reformed" code sections, but no reference to an effective date) to likewise apply only to causes of action arising on or after July 1, 1987. See also OCGA 1-3-5. Accordingly, OCGA 51-12-6 as amended by the Tort Reform Act is not applicable to this case.
Thomas C. James III, for appellees.
G. Leonard Liggin, for appellant.
DECIDED FEBRUARY 15, 1988 -- REHEARING DENIED MARCH 3, 1988 -- CERT. APPLIED FOR.
Thursday May 21 12:39 EDT


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