Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

YIM v. Carr

Court of Appeals of Georgia, First Division

April 23, 2019

YIM et al.
v.
CARR; and vice versa.

          BARNES, P. J., MERCIER and BROWN, JJ.

          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 Yim's parents as the non-moving parties, 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, 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. We ruled that "the family purpose doctrine is not applicable because the undisputed evidence established that [the mother] . . . had no right to specify when, how, or for what purpose [her son] used [the car]." Id. at 754. We further noted that "[t]he requisite authority over the vehicle was not established merely because the insurance policy and title to the car were in [the mother's] name." Id. Likewise, in Walston, 213 Ga.App. 441, we held that the family purpose doctrine was inapplicable where the father was listed as a joint owner on the car title and co-signed the loan for the car, but his son was financially responsible for the vehicle and was the sole driver, and the father "did not attempt to exercise authority or control over the vehicle." Id. at 442. Bailey and Walston are factually on point and control the outcome of this case. Accordingly, because the uncontroverted evidence shows that Yim's use of the car was not under her parents' authority and control, the family purpose doctrine is inapplicable, and the trial court erred in concluding otherwise.

         In contending that summary judgment was properly denied, Carr asserts that Yim was subject to "house rules" imposed by her parents. However, Carr fails to provide any record citations to support her assertion, and we have found no record evidence to support it. Consequently, the present case is distinguishable from cases where there was some evidence that the parent had authority to restrict, or did in fact restrict, the child's use of the vehicle for violating household rules. See Tolbert v. Murrell, 253 Ga. 566, 569 (2) (322 S.E.2d 487) (1984) (mother "deprived her son of the use of a car at least once as an incentive to do better in school"); Danforth v. Bulman, 276 Ga.App. 531, 533 (1) (623 S.E.2d 732) (2005) (mother expected her son to follow her basic household rules and would have restricted his use of the car if she'd known he was drinking or using drugs).

         Carr also cites to Kirkland v. Crawford, 136 Ga.App. 388 (221 S.E.2d 482) (1975), to support her contention that summary judgment was properly denied to Yim's parents. In Kirkland, we affirmed the denial of a motion for directed verdict and held that a wife could be held vicariously liable under the family purpose doctrine for an automobile collision caused by her husband. Id. at 389-390. But, Kirkland only addressed arguments concerning whether the wife was the owner and provider of the car used by her husband; it did not address the additional step of the family purpose doctrine analysis, i.e., whether the wife exercised authority and control over the vehicle. See id. "Issues merely lurking in the record, neither brought to the court's attention nor expressly ruled upon, have not been decided so as to constitute precedent." (Citation and punctuation omitted.) Atlantic Specialty Ins. Co. v. Lewis, 341 Ga.App. 838, 845 (1) (c), n. 4 (802 S.E.2d 844) (2017). It follows that Kirkland is not pertinent to the central question raised in the present appeal regarding whether Yim's parents exercised authority and control over the car.

         In any event, Kirkland is factually distinguishable. The evidence in that case showed that the title and insurance documents for the car driven by the husband were solely in his wife's name. Kirkland, 136 Ga.App. at 388. And, while there was some evidence that the husband paid for the car and its expenses, id. at 389, there also was some evidence that the husband was unemployed, and thus was financially dependent on his wife to supply the vehicle for his use. Id. at 390. In contrast, Yim was listed on the car title as an owner, and the undisputed evidence shows that she was employed and had the financial means to pay for the car. Compare id.; Watson v. Brown, 126 Ga.App. 69, 71-72 (189 S.E.2d 903) (1972) (car driven by granddaughter was titled in grandmother's name, and there was some evidence that the granddaughter, who was a minor enrolled in college, was financially dependent on the grandparents to pay for the car). Because Kirkland did not address the question of authority and control and is factually dissimilar in material respects from the present case, it does not control the outcome here.

         In sum, the uncontroverted evidence reflects that Yim's parents did not exercise any authority or control over the car. Accordingly, the trial court erred in denying the parents summary judgment on Carr's vicarious liability claim predicated on the family purpose doctrine.

         (b) The parents also contend that the trial court erred in denying their motions for summary judgment on the ground that there was evidence to support holding them vicariously liable based on the doctrine of respondeat superior.[3] We agree.

         Under the doctrine of respondeat superior, an employer can be held vicariously liable for the negligence of an employee "when the employee is acting within the course and scope of his employment." Corrugated Replacements v. Johnson, 340 Ga.App. 364, 366 (1) (b) (797 S.E.2d 238) (2017). See Allen Kane's Major Dodge v. Barnes, 243 Ga. 776, 777 (257 S.E.2d 186) (1979) ("When a servant causes an injury to another, the test to determine if the master is liable is whether or not the servant was at the time of the injury acting within the scope of his employment and on the business of the master.").

         Here, there was evidence that Yim's father was the sole proprietor of a cleaning company and that Yim worked for the company. But, Yim's father did not own the car she was driving when the automobile collision occurred. Furthermore, Yim averred in her affidavit that at the time of the accident, she was "traveling to do volunteer work of [her] own choosing" rather than to her job, and she testified in her deposition that she was on her way to a volunteer organization when the collision happened. Yim's father did not contradict her on this point.

         Carr contends, however, that Yim's mother testified in her deposition that Yim was engaged in an activity that advanced the father's cleaning business at the time of the collision, thereby creating a genuine issue of material fact on the issue of respondeat superior liability. Carr's contention is belied by the deposition transcript, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.