Clark v. Byrd

ANDREWS, Presiding Judge,

concurring in part and dissenting in part.

While I concur in Division 2 of the majority opinion and agree that Nestlehutt, Allstate and Hinds were entitled to summary judgment pursuant to Superior Ins. Co. v. Dawkins, 229 Ga. App. 45 (494 SE2d 208) (1997), I must respectfully disagree with Division 1, because I believe that Byrd and State Auto were also entitled to summary judgment on Count 4, the fraud count, Division 1 (a); no argument was made below on promissory estoppel, Division 1 (b);1 and Clark is not entitled to reformation of the release under the facts here, Division 1 (c).

The release signed by Clark on November 11, 1997, stated that

I do hereby release and forever discharge William Nestle-hutt and any other person, firm or corporation charged or chargeable with responsibility or liability, their heirs, representatives and assigns, from any and all claims, demands, *830damages, costs, expenses, loss of services, actions and causes of action, arising from any act or occurrence up to the present time and particularly on account of all personal injury, disability, property damage, loss or damages of any kind already sustained or that I may hereafter sustain in consequence of an accident that occurred on or about the 1st day of June 1997. . . .

(Emphasis supplied.)

Although the entire policy issued by State Auto to Clark is not contained in the record, the initial page regarding uninsured motorist coverage is, and it provides that “[w]e [State Auto] will pay under this coverage only after the limits of liability under any applicable liability bonds or policies have been exhausted by payment of judgments or settlements.”

Therefore, any statements made by Byrd that Clark needed to deal with Allstate first regarding the limits of its policy were correct and could not form the basis for any fraud claim. Further, as Clark acknowledged, when she asked Byrd about her dealings with Allstate, Byrd told her she was not an attorney and could not give her advice. Clark’s pleadings state that she did not rely on Byrd’s representations. There is nothing in the record to indicate that Byrd even knew the wording of the Allstate release prior to receiving a copy of it in January 1998.2

Clark seeks to have the release reformed as to State Auto’s liability based on her and Hinds’ claimed mutual mistake of law regarding the effect of the release on her ability to bring a claim against State Auto based on Superior Ins. Co. v. Dawkins, supra. State Auto and Byrd were entitled to summary judgment on this theory, I believe, because the facts here do not support such a mutual mistake of law. Hinds mailed the release to Clark in West Virginia where it was signed by Clark on November 20, 1997. Clark acknowledged reading the release before signing it and was “hesitant” about the wording of it. Clark also acknowledged that she had in fact already signed the release in West Virginia before she called Hinds to ask whether she could sign the documents and still pursue her claim against State Auto. Therefore, Hinds had made no representation regarding the release before Clark signed it. Further,

[w]here the parties to a written instrument have equal opportunities and means of knowing the truth concerning the contents and meaning of the instrument, the courts gen*831erally have expected each party to rely upon his own discretion, rather than acting upon the representations of the other side. Bass v. Seaboard A.L.R. Co., 205 Ga. 458, 467 (53 SE2d 895) (1949). Because no fiduciary relationship exists between a claimant and the insured’s insurance carrier, a release obtained by the insurance agent is binding on the claimant even if the statements and representations made by the agent were incorrect or erroneous unless the agent by artifice, trick, or fraud prevented the claimant from reading the entire release. Wheat v. Montgomery, 130 Ga. App. 202 (202 SE2d 664) (1973); Conklin v. Liberty Mut. Ins. Co., 240 Ga. 58, 60 (239 SE2d 381) (1977).

Daniel v. Conrad, 242 Ga. 119, 120 (249 SE2d 603) (1978). See also Vickers v. Roadway Express, 210 Ga. App. 78, 79 (2) (435 SE2d 253) (1993); White v. Lott, 175 Ga. App. 263, 265 (2) (333 SE2d 118) (1985). Such a conclusion is also consistent with the general rule that

“fraud cannot be predicated upon misrepresentations of law or misrepresentations as to matters of law.” [Cits.] The basis for this generally is that everyone is presumed to know the law, and therefore cannot in legal contemplation be deceived by erroneous statements of law. It has been held that this principle of law is especially true where there is no confidential relationship between the parties. [Cits.]

Dixon v. Dixon, 211 Ga. 557, 563 (2) (87 SE2d 369) (1955).

Regarding the applicability of Superior Ins. Co. v. Dawkins, supra, that case involved different facts. Initially, although the dates of the accident and the signing of the release are not stated in the opinion, those events were obviously much closer in time to the enactment of Ga. L. 1994, p. 1156, OCGA § 33-24-41.1, when uncertainty about its effect and use was apparent. There, Superior’s adjuster who sent the release to Dawkins stated that she “believed the new law would supersede the release language and allow a partial settlement.” Superior Ins. Co. v. Dawkins, supra at 49.

Here, Clark acknowledges that she was troubled by the language of the release, discussed it with her family and accountant, but, nonetheless signed it despite the clear language set out above.

Therefore, I believe there is no basis for reformation of the release regarding Byrd and State Auto and would have affirmed the trial court’s grant of summary judgment.

I am authorized to state that Presiding Judge Johnson and Judge Ruffin join in this dissent.

*832Decided March 28, 2002 Reconsideration denied April 10, 2002 Kenneth C. Pollock, for Clark. William, C. Rhodes, for Byrd. Carlock, Copeland, Semler & Stair, Frederick M. Valz III, Boyd B. Newton, for Allstate Indemnity Company et al. Downey & Cleveland, Rodney S. Shockley, for Nestlehutt.

It is a fundamental rale of appellate practice that this Court does not consider arguments which are not argued by the parties before the trial court. See generally Comer v. Nat. Bank of Ga., 184 Ga. App. 867, 868 (3) (363 SE2d 153) (1987). The majority opinion fails to follow this rule by apparently applying a “wrong for any reason” rule, in contravention of the right for any reason rule. See, e.g., Dunwoody-Woodlands Condo. Assn. v. Hedquist, 199 Ga. App. 91 (2) (403 SE2d 893) (1991). “It is not the function of an appellate court to cull the record on behalf of a party in search of instances of error. [Cits.]” Mauldin v. Weinstock, 201 Ga. App. 514, 517 (3) (411 SE2d 370) (1991).

State Auto did not even receive any information from Clark regarding her medical condition and treatment until December 24, 1997.