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Shamblin v. Corporation of Thepresiding Bishop of Church of Jesus Christ of Latter Day Saints

Court of Appeals of Georgia, Second Division

October 31, 2019

SHAMBLIN et al.
v.
CORPORATION OF THEPRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS et al. SHAMBLIN et al.
v.
CORPORATION OF THE PRESIDENT OF THE CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS.

          MILLER, P. J., RICKMAN and REESE, JJ.

          Reese, Judge.

         These consolidated appeals arise from a wrongful death case brought by Deisha Shamblin ("Appellant") in her individual capacity as the spouse of Steven Shamblin ("decedent") and as the administrator of the decedent's estate, as well as in her capacity as the mother and natural guardian of the couple's minor child ("P. S."). The trial court dismissed the complaint as to Paulding County Post III, Inc. d/b/a American Legion Post 111 ("Post 111"), and, in Case No. A19A1238, the Appellant appeals from that judgment, arguing that the court erred in finding that her claims against Post 111 were barred by charitable immunity. In addition, the trial court granted summary judgment to the Corporation of the Presiding Bishop of the Church of Latter Day Saints ("Church"), and granted partial summary judgment to Stevan Crew and William Hayes. In Case No. A19A1239, the Appellant appeals from that judgment, arguing that jury issues exist as to whether the Church was involved in a joint venture with Post 111 and whether these defendants are liable on P. S.'s claim for negligent infliction of emotional distress. For the reasons set forth infra, we affirm the trial court's judgment in each case.

         The following facts are undisputed. For several years prior to July 4, 2015, the City of Dallas ("City") and Post 111 conducted a service project in Paulding County three to four times a year. The purpose of the project ("flag project") was to honor the deceased military service members from the county by erecting American flags along the shoulder of Highway 278. Post 111 provided an antique 1953 Ford F-600 fire truck ("fire truck") that it owned, and the City provided an F-350 Ford truck, driven by a City employee, that pulled a flat-bed trailer.[1] Both vehicles were used to transport the flags and community volunteers along the highway; the volunteers erected the flags in the morning and then removed them the same afternoon. A Paulding County police patrol car, with its blue lights flashing, followed each vehicle for safety purposes.

         Post 111 only allowed members of its organization to drive its fire truck, and it required a second member to ride in the cab whenever the fire truck was driven during service projects, parades, or other official Post 111 functions. Crew was a member of both Post 111 and the Church, and he drove Post 111's fire truck on July 4, 2015, while Hayes, the commander of Post 111, rode alongside Crew as a passenger in the fire truck's cab. Crew had previously driven the fire truck for the flag project 15 to 20 times with Hayes as a passenger, and Hayes had never seen Crew have any difficulty driving the fire truck or do anything reckless or negligent while driving it, nor had he (Hayes) received any complaints from anyone else regarding Crew's driving.

         The decedent was a member of the Church, had volunteered with the flag project for several years prior to 2015, and was in charge of the safety of all the volunteers riding on the fire truck. The decedent also helped recruit other Church members as volunteers for each flag project, and all of the volunteers on the day at issue were Church members, except for Hayes.

          In the late afternoon of July 4, 2015, the decedent and 12-year-old P. S. were riding with about 12 other volunteers on the back of the fire truck as it drove along the highway between stops to collect the flags. The decedent was standing on a small metal deck attached to the back of the fire truck and was holding onto a pole attached to the truck's side. According to a friend and fellow volunteer, the decedent always stood in the same place on the back of the fire truck during the flag project. P. S. rode in the bed of the fire truck with the flags and other volunteers; he stated in his deposition that his dad would not let him ride on the back of the truck because it was "unsafe." After the group had collected all of the flags from the highway's shoulder, Crew drove the fire truck to a nearby parking lot, where the flat-bed trailer and other volunteers were waiting. Before stopping the fire truck in the parking lot, Crew made a "U-turn" around a light pole so he could pull the fire truck up next to the flat-bed trailer, onto which the volunteers would load all of the flags. According to Hayes, Crew made the U-turn in the parking lot the same way he (Crew) had done it during flag projects over the past 20 years.[2]

          At some point during the U-turn, however, the decedent either fell or was thrown off the back of the fire truck and landed on the asphalt lot, violently striking his head against the hard surface ("the incident"). Although P. S. did not witness the incident, he saw his father lying motionless on the asphalt, and he witnessed as other volunteers, then law enforcement officers and paramedics, tried to revive the decedent before loading him onto a helicopter to be transported to the hospital. As a result of the incident, the decedent suffered a fractured skull and brain injuries, and he died of those injuries two days later.

         The Appellant filed the instant wrongful death suit against Post 111, the Church, Crew, Hayes, and others, asserting that Crew, as an agent acting on behalf of both Post 111 and the Church, negligently drove Post 111's fire truck and that such negligence caused the decedent's death. The complaint alleged that Hayes, as Post 111's commander, negligently allowed Crew to drive the fire truck and negligently supervised him. In addition, the complaint asserted that the "Defendants" (Post 111 and the Church) negligently entrusted the operation of the fire truck to Crew, inadequately trained Crew in the safe operation of the fire truck, and negligently supervised Crew during his operation of the fire truck. The complaint also asserted a claim on behalf of P. S. for negligent infliction of emotional distress ("NIED") based upon the emotional distress that resulted from "witnessing his father's body laying in the parking lot after [the] incident" and "hearing and watching his father die from his injuries[.]"

         Post 111 moved to dismiss the complaint, asserting that the claims were barred by its charitable immunity. Following a hearing, the trial court granted the motion and dismissed all claims against Post 111. The Church, Crew, and Hayes subsequently moved for summary judgment on the complaint. Following a hearing, the trial court granted summary judgment to the Church on all of the Appellant's claims, and granted Crew and Hayes partial summary judgment, ruling in their favor on the NIED claim, only. These appeals followed.

         1. As an initial matter that is dispositive on issues in both Case No. A19A1238 and Case No. A19A1239, [3] the trial court granted summary judgment to the Church on the Appellant's claims of negligent entrustment, negligent training, and negligent supervision of Crew. In so ruling, the court specifically held that "the undisputed evidence [showed] that Crew was not incompetent or reckless. There [was] evidence that Crew had driven the truck on many previous occasions without incident and that he was good at driving the truck." The trial court ruled that, because the Appellant failed to produce any evidence of incidents in which Crew exhibited behavior that was similar to that which allegedly caused the injuries in this case, "there [was] no evidence that anyone knew or should have known that Crew would engage in any reckless behavior[ ]" on the day at issue.[4] Accordingly, the Appellant could not prevail on her claims for negligent entrustment, training, and/or supervision as a matter of law.

         On appeal, the Appellant does not challenge the trial court's ruling on the merits of those claims, i.e., that she had failed to present any evidence to create a jury issue on them. Consequently, any error as to that ruling is deemed abandoned, [5] and it is affirmed as a matter of law.[6]

         Case No. A19A1238

         2. The Appellant contends that the trial court erred in dismissing Post 111 based on a finding that the organization's charitable immunity had not been waived. She asserts two bases that she claims constituted at least a partial waiver of Post 111's immunity: her claims against Post 111 for its "active negligence" were not barred by its charitable immunity, and she had an uninsured motorist ("UM") policy that provided coverage for her claims. These assertions present no reversible error.

         The general purpose of the charitable immunity doctrine is that a qualifying organization's charitable assets should not

be depleted by subjection to liability for negligence and that it would be against public policy, as well as against the settled principles of law, to allow any judgment to be rendered against it because of the negligence of any of its employees or agents, except where it failed to exercise ordinary care in selecting and retaining its employees and servants.[7]

         A charitable organization, however, may choose to purchase a liability insurance policy in order to protect its charitable assets from being depleted by a judgment of liability for injuries or damages that may arise while the organization is carrying out its charitable functions, while still ensuring that such injuries or damages are compensated for from its non-charitable asset, the liability insurance.[8] In such a situation, "[t]he delivery and the acceptance of an insurance liability policy between an insurance company and a charitable institution and the payment and acceptance of its premium constitutes, as to the amount of the policy, a waiver by the charity and by the insurance company of the immunity otherwise accorded to the charitable assets."[9] In other words, "[a] charitable institution waives charitable immunity to the extent of any liability insurance which it carries."[10] Any liability that exceeds the policy limits, however, is barred by charitable immunity, unless that liability is premised on a claim to which charitable immunity does not apply.[11]

         Here, there is no dispute that Post 111 is a charitable organization[12] and that it is entitled to charitable immunity. Instead, the only material issue in dispute as to Post 111's liability in this case is whether that immunity has been waived and, if so, to what extent.

         (a) The undisputed evidence shows that, prior to the date of the incident, Post 111 had purchased two liability insurance policies: one with Ironshore Indemnity, Inc. ("Ironshore"), which provided coverage for Post 111's fire truck, and another with Owners Insurance Company, which was a combined property and commercial general liability policy that did not cover the fire truck or the incident. Before the Appellant filed her complaint against Post 111 and the other defendants, Ironshore paid the Appellant its policy's limit, $100, 000. In exchange, the Appellant signed a "Limited Liability Release" ("Release") in which she

acquit[ted], remise[d], release[d], and forever discharge[d] [Post 111], except to the extent other liability insurance is available which covers the claim or claims of the [Appellant] against [Post 111], from any and all claims, demands, rights, and causes of action of whatsoever kind and nature, specially including but not limited to, all known and unknown bodily and personal injuries and all damages sustained by the [Appellant], including damage to property[ and all] medical expenses, that belong to the [Appellant] or which may hereafter accrue to the [Appellant] on account of or resulting from the incident [at issue in this case that resulted] in the wrongful death of [the decedent].[13]

         During the hearing on Post 111's motion to dismiss, the Appellant's counsel specifically admitted that Post 111 could not be held liable for any damages in this case because Ironshore had paid the limits of Post 111's ...


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