YIM et al.
CARR; and vice versa.
BARNES, P. J., MERCIER and BROWN, JJ.
BARNES, PRESIDING JUDGE.
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. 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
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.
No. A19A0715 1.
parents contend that the trial court erred in denying their
motions for summary judgment.
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)
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
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
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."
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
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.
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.
footnotes, and emphasis omitted.) Dashtpeyma v.
Wade, 285 Ga.App. 361, 362-363 (2) (646 S.E.2d 335)
(2007). 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).
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.
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
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).
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.
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.
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.
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. We agree.
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.").
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.
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, ...