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Auto-Owners Insurance Co. v. Dolan

Court of Appeals of Georgia, Fifth Division

June 28, 2017

AUTO-OWNERS INSURANCE COMPANY
v.
DOLAN et al. AIR MECHANIX, LLC
v.
DOLAN et al. DOLAN et al.
v.
AIR MECHANIX, LLC.

          McFADDEN, P. J., BRANCH and BETHEL, JJ.

          McFadden, Presiding Judge.

         Michael and Shana Dolan[1] filed a complaint against Air Mechanix, LLC, and others, [2] asserting claims arising from the allegedly negligent installation of air conditioning ductwork in the Dolans' house. Auto-Owners Insurance Company, which had issued a commercial general liability insurance policy to Air Mechanix, was permitted to intervene.[3] The case was tried before a jury, which returned a verdict in favor of the Dolans. The special verdict form used by the jury included specific amounts awarded for different types of damages which totaled $1 million. But in filling out the line totaling those itemized amounts, the jury incorrectly wrote $1, 000, 000, 000 instead of $1, 000, 000. The trial judge read the verdict in open court, including the amounts itemized for each type of damages, and the judge twice stated without objection that the total award was for $1 million. The trial court subsequently entered judgment on the verdict in the amount of $1 million. These appeals followed. In Case No. A17A0408, Auto-Owners challenges the trial court's denial of its motion in limine; however, Auto-Owners has failed to show that the trial court abused its discretion in denying the motion. Auto-Owners also claims that the trial court erred in submitting a special verdict form to the jury because it did not conform to the evidence and was confusing; but neither of these objections to the special verdict form was raised at trial.

         In Case No. A17A0409, Air Mechanix contends that the weight of the evidence showed that its negligence did not cause the mold in the house; however, we do not reweigh the evidence and there was some evidence showing causation. Air Mechanix also contends that the trial court erred in denying its motion for a directed verdict as to the Dolans' personal injury claims; but the evidence did not demand such a verdict. Air Mechanix further claims that the trial court erred in denying its motion for a mistrial based on improper closing argument; however, any error was harmless. Finally, contrary to Air Mechanix's arguments, there was sufficient evidence to support the Dolans' claim for additional living expenses.

         In Case No. A17A0410, the Dolans contend that the trial court erred in directing a verdict on their fraud, punitive damages, and attorney fees claims; however, the Dolans failed to prove all the elements for such claims. The Dolans further claim that the trial court erred in excluding any reference to Air Mechanix's liability insurance carrier at trial; however, the Dolans have not shown an abuse of discretion or harm from the ruling. Finally, the Dolans claim that the special verdict form was confusing; but they raised no objections to the form at trial. Accordingly, we affirm the judgment entered on the verdict.

         Case No. A17A0408

         1. Motion in limine.

         Auto-Owners asserts that the trial court erred in denying its motion in limine to prohibit evidence that the Dolans suffered bodily injury caused by anything other than exposure to mold because such evidence was barred by the doctrines of res judicata and collateral estoppel. The assertions are without merit.

As a preliminary matter, we note that these assertions of error raise a question of collateral estoppel, or issue preclusion, and not one of res judicata, or claim preclusion. The doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action. By contrast, the related doctrine of collateral estoppel precludes the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies. Like res judicata, collateral estoppel requires the identity of the parties or their privies in both actions. However, unlike res judicata, collateral estoppel does not require identity of the claim - so long as the issue was determined in the previous action and there is identity of the parties, that issue may not be re-litigated, even as part of a different claim.

Etowah Environmental Group v. Walsh, 333 Ga.App. 464, 469-470 (1) (774 S.E.2d 220) (2015) (citations and punctuation omitted; emphasis in original) (physical precedent).

         Here, Auto-Owners relies on this court's prior opinion in Auto-Owners' separate declaratory judgment action to argue that res judicata barred the Dolans from presenting evidence that their bodily injuries were caused by something other than mold. See Dolan v. Auto Owners Ins. Co., supra. However, that prior case involved Auto-Owners' declaratory judgment claims concerning exclusions from coverage under the insurance policy it had issued to Air Mechanix; that case did not litigate the merits of the Dolans' negligence and other claims in the instant case. See Dolan, supra at 606. Thus, because the prior and current cases did not litigate identical causes of action, the doctrine of res judicata does not apply or support the motion in limine.

         With regard to collateral estoppel, the specific issue raised by Auto-Owners' motion in limine in this case - whether the Dolans could introduce evidence of bodily injury caused by something other than mold - was not actually litigated and decided in that prior declaratory judgment action. Accordingly, the doctrine of collateral estoppel did not prevent the introduction of such evidence in this case and the trial court therefore did not abuse its discretion in denying the motion in limine seeking to exclude such evidence. See Hankla v. Jackson, 305 Ga.App. 391, 392 (1) (699 S.E.2d 610) (2010) (this court reviews a trial court's ruling on a motion in limine for abuse of discretion).

         2. Special verdict form.

         Auto-Owners contends that the trial court erred by submitting a special verdict form to the jury that did not conform to the evidence and that was confusing. However, Auto-Owners did not object to the verdict form used by the court on these grounds. Rather, the trial transcript shows that the day before the case was submitted to the jury, the parties presented proposed verdict forms, and counsel for Auto-Owners objected to the Dolans' proposed form on the grounds that it was complicated and that there was no evidence of damages caused by anything other than mold in the house. The trial judge indicated that he would look at the parties' proposed verdict forms, prepare the court's own verdict form, and show it to the parties the following day.

         The next morning, the parties reviewed the court's special verdict form and Auto-Owners did not object to it as confusing or not conforming to the evidence. Rather, counsel for Auto-Owners stated that he appreciated the court reconfiguring the parties' proposals "to take care of the problems with the mold and non-mold claims, " and that his only objection was to a blank for the jury to fill in for an award of universal damages. Auto-Owners' counsel explained, "the only objection I would have is, to me, it seems like it's suggesting to them that they should award some particular amount and it would be more slanted toward the [p]laintiff than to the [d]efense." The court did not expressly rule on that specific objection and apparently did not change its verdict form. After closing arguments and the jury charge, the parties again reviewed the verdict form to be submitted to the jury and no further objections were raised. The jury subsequently ...


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