Security Life Insurance v. Clark

Barnes, Judge.

In Clark v. Security Life Ins. Co., 270 Ga. 165 (509 SE2d 602) (1998), the Supreme Court reversed our decision in Security Life Ins. Co. v. Clark, 229 Ga. App. 593 (494 SE2d 388) (1997), in which we reversed the judgment of the trial court. Accordingly, we must conform that decision to our Supreme Court’s opinion in this case.

In reversing our prior decision, our Supreme Court expressly stated,

we conclude that the trial court did not err in submitting the *691issue of vicarious liability to the jury. There was some evidence from which the jury could conclude that Security Life recklessly tolerated the forgery by not investigating the charge of forgery and by pressing its rescission claim long after learning that Fipps forged the application.

(Emphasis supplied.) Clark v. Security Life, supra, 270 Ga. at 168 (2).

Further, even though the Supreme Court recognized that “the failure to file the policy, standing alone, cannot serve as a basis for liability under [the Racketeer Influenced & Corrupt Organizations Act],” Clark v. Security Life, supra, 270 Ga. at 168 (3), it also stated immediately thereafter, “This conclusion, however, does not preclude a plaintiff from establishing a RICO claim through proof of an insurance fraud scheme if that scheme as a whole meets the definition of racketeering activity under OCGA § 16-14-3 (9).” Id.

Consequently, the Supreme Court’s holding that the trial court properly submitted to the jury the issue of vicarious liability under RICO and its holding that RICO liability may be based on an insurance fraud scheme that meets the definition of racketeering activity under OCGA § 16-14-3 (9) require us to affirm the judgment of the trial court. Otherwise, Divisions 2 and 3 of the Supreme Court’s opinion would be merely advisory. To the extent that this result conflicts with Division 1 (c) of our original opinion which was not addressed directly by the Supreme Court, Division 1 (c) must yield to the Supreme Court’s decision. Atlanta Journal &c. v. Long, 259 Ga. 23, 24 (1) (376 SE2d 865) (1989).

Further, because the Supreme Court’s decision requires us to affirm the trial court’s judgment, we cannot address the other errors enumerated by Security Life. If the Supreme Court intended for this court to do otherwise, it would have reversed our opinion and remanded the case to us with direction. See, e.g., Roberts v. Burke County School Dist., 267 Ga. 665, 668 (482 SE2d 283) (1997) (“The case is remanded to the Court of Appeals for action consistent with this opinion.”); Coleman v. Columns Properties, 266 Ga. 310, 312 (467 SE2d 328) (1996) (“Accordingly, the judgment of the Court of Appeals cannot stand, and the case is remanded for consideration consistent with this opinion.”). Because the Supreme Court did not issue such direction in this case, our obligation is to carry out the decision of the Supreme Court.

The disposition proposed by the dissent cannot be adopted because it conflicts with the Supreme Court’s decision, and under our law we cannot overrule, modify, or deviate from our Supreme Court’s decisions: “The decisions of the Supreme Court shall bind all other courts as precedents.” Ga. Const, of 1983, Art. VI, Sec. VI, Par. VI. “The rule is also required by the Georgia Code, which states that ‘any *692ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court. . . .’ OCGA § 9-11-60 (h)” Atlanta Journal &c. v. Long, supra, 259 Ga. at 24 (1). Here, the effect of the dissent would be to reach a result that is not authorized by the Supreme Court’s opinion in this case.

Accordingly, Division 1 (a), (c), and (d), to the extent it is inconsistent with the Supreme Court’s opinion, and the judgment of our earlier opinion are vacated, our Supreme Court’s opinion and judgment are made the judgment of this court, and the judgment of the trial court is affirmed. Divisions 1 (b) and 2 of our earlier opinion are not affected by this decision.

Judgment affirmed.

Johnson, C. J., and Eldridge, J., concur. Pope, P. J., concurs in the judgment only. Andrews, P. J., Blackburn, P. J., and Ruffin, J., dissent.