WOODRUM et al.
GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
MCFADDEN, P. J., RAY and RICKMAN, JJ.
McFadden, Presiding Judge.
dispositive issues in this appeal are whether the trial court
abused its discretion in excluding a witness' opinion
testimony as to diminution in value of certain property and
in then granting summary judgment based on an absence of any
evidence of diminution in value. While the court did not
abuse its discretion in finding that the witness could not
offer expert opinion testimony, the court did abuse its
discretion in finding that the witness could not offer his
opinion of value as a lay witness. So we reverse both the
order excluding such lay witness opinion testimony and the
grant of summary judgment.
appeal from the grant of summary judgment, the appellate
court conducts a de novo review of the evidence to determine
whether there is a genuine issue of material fact and whether
the undisputed facts, viewed in the light most favorable to
the nonmoving party, warrant judgment as a matter of
law." Bank of America, N. A. v. Cuneo,
332 Ga.App. 73, 74 (770 S.E.2d 48) (2015) (citation and
punctuation omitted). So viewed, the evidence shows that
during a thunderstorm on July 5, 2012, a large tree fell onto
the roof of William and Kathy Woodrum's house, causing
significant damage to the house. The next day, the Woodrums
reported the damage to their insurer, Georgia Farm Bureau
Mutual Insurance Company. On November 7, 2012, after the
Woodrums and Georgia Farm Bureau were unable to agree upon
the amount of the loss, the Woodrums invoked the appraisal
clause of the insurance policy. That clause provided:
If you[, the Woodrums, ] and we[, Georgia Farm Bureau, ] fail
to agree on the amount of loss, either may demand in writing
an appraisal of the loss. In this event, each party will
choose a competent appraiser within 20 days after receiving a
written request from the other. The two appraisers will
choose an umpire. If they cannot agree upon an umpire within
15 days, you or we may request that the choice be made by a
judge of a court of record in the state where the residence
premises is located. The appraisers will separately set the
amount of the loss. If the appraisers submit a written report
of an agreement to us, the amount agreed upon will be the
amount of loss. If they fail to agree, they will submit their
differences to the umpire. A decision agreed to by any two
will set the amount of loss.
February 5, 2013, pursuant to the appraisal process, an award
was issued and agreed to by the Woodrums' appraiser and
the appointed umpire. Georgia Farm Bureau made payment of the
award to the Woodrums.
Woodrums subsequently brought suit against Georgia Farm
Bureau, seeking compensation for diminution in value. The
complaint included counts for breach of contract and breach
of an implied duty of good faith and fair dealing. The breach
of contract claim was based on allegations that the fallen
tree had caused a crack in the slab foundation of the house,
that the value of the house was diminished by the cracked
foundation, that such diminished value was a covered loss
under the policy that was not included in the appraisal
award, and that Georgia Farm Bureau had failed to pay for
that diminished value. In support of the claim, the Woodrums
filed the affidavit of George Hall, the contractor who had
repaired the Woodrums' house and who opined that the
value of the house was diminished by the foundation being
cracked. During a subsequent deposition, Hall gave his
opinion that the house had lost 25 percent of its value due
to the cracked foundation.
Georgia Farm Bureau filed a motion to exclude Hall as an
expert witness and a motion for summary judgment. On March
24, 2017, the trial court entered an order granting the
motion to exclude Hall's testimony as an expert regarding
the diminution in value of the Woodrums' property. In
that same order, the trial court also excluded Hall's
testimony as a lay witness giving an opinion as to value. On
that same date, the trial court issued a separate order
granting the insurance company's motion for summary
judgment on both of the Woodrums' claims. As to the
breach of contract claim, the court found that without
Hall's excluded testimony, there was no other evidence
that the diminution in value of the property was not included
in the amount of loss determined under the appraisal clause.
As to the claim for breach of implied duty of good faith and
fair dealing, the court found that it could not be maintained
because there is no such independent cause of action apart
from the breach of contract claim, which had already been
disposed of on summary judgment. The Woodrums appeal.
Exclusion of Hall's testimony.
Woodrums challenge the trial court's exclusion of
Hall's expert testimony as to value and his lay witness
opinion testimony on that issue. While the court did not err
in excluding his testimony as an expert, the court did err in
excluding his testimony as a lay witness.
outset, we note that the Woodrums were not required to
present expert testimony as to value. As we have explained in
a different context involving property valuation -
confirmation of a nonjudicial foreclosure sale - the party
seeking such confirmation
is under no obligation to present an expert appraisal of the
property. Direct testimony as to market value is in the
nature of opinion evidence. One need not be an expert or
dealer but may testify as to its value if he has had an
opportunity for forming an opinion. Of course, the opinions
of experts as to the true market value of property are
admissible, and provide sufficient evidence of value to
support a trial court's order of confirmation.
Harper v. Ameris Bank, 326 Ga.App. 67, 69-70 (2)
(755 S.E.2d 872) (2014) (citation and punctuation omitted;