Great Southwest Express Co. v. Great American Insurance Co. of New York

RUFFIN, Presiding Judge,

concurring in part and dissenting in part.

Because I do not agree with the majority that the tortious interference claim can be resolved against Southwest as a matter of law, I am compelled to dissent to Divisions 1 and 2 of the majority opinion.

Since the Civil Practice Act has been enacted, it is no longer necessary that a complaint be perfect in form or set out each issue *762with particularity; rather, a complaint must only place the defendant on notice of the claim.4 Here, in its amended complaint, Southwest alleged “that prior to [Great American’s] wrongful and tortious acts, [Southwest] had an ongoing business relationship with Goodyear Tire and Rubber Company, which resulted in revenue to Southwest ... of approximately $2,500,000.00 per year” and that this relationship was “ultimately terminated due to the problems created by Great American.” Although the complaint specifically alleges a claim for “tortious interference with contractual relations,” I believe that the broad language also encompasses a claim for tortious interference with business relations. Even though this claim was not explicitly set forth in the complaint, the complaint may nonetheless be reasonably construed under the liberal pleading requirements of the Civil Practice Act to include this claim.5

We have repeatedly held that the elements of this hybrid tortious interference claim are as follows:

(1) improper action or wrongful conduct by the defendant without privilege; (2) the defendant acted purposely and with malice with the intent to injure; (3) the defendant induced a breach of contractual obligations or caused a party or third parties to discontinue or fail to enter into an anticipated business relationship with the plaintiff, and (4) the defendant’s tortious conduct proximately caused damage to the plaintiff.6

Under this broader language, I do not believe that we can say, as a matter of law, that Southwest is unable to sustain a tortious interference claim against Great American.7 Summary judgment is appropriate only if there are no genuine issues of material fact and the moving party has shown entitlement to judgment as a matter of law.8 Here, the evidence shows that, after having insured Southwest *763for several years, Great American unilaterally decided to modify the insurance policy to exclude losses caused by theft from unattended vehicles. Although OCGA § 33-24-47 (b) requires an insurer seeking to limit or restrict coverage to notify the insured of the proposed change, Great American apparently did not do so. Indeed, there is some evidence that Southwest never received a copy of the renewal policy until after Great American denied coverage. After Southwest sustained several thefts of Goodyear products from unattended trailers, it attempted to collect from Great American, only to learn that Great American was denying coverage. Ultimately, Southwest lost Goodyear as its customer, forcing Southwest to cease operations.

Decided July 16, 2008 Miller, Cowart & Howe, Craig N. Cowart, for appellant. Dennis, Corry, Porter & Smith, John D. Dixon, Michael W. Horst, for appellee.

Given these facts, I believe that the trial court’s grant of summary judgment was premature, and that this issue is not yet ripe for appellate review. The crux of this case is not whether Great American induced or caused Goodyear to end its business relationship with Great American, but whether Great American acted wrongly in denying coverage for the thefts from Southwest’s trucks. And the trial court has yet to rule on Great American’s declaratory judgment action to determine coverage, which may be determinative of the tortious interference claim. Under these circumstances, the appropriate course of action is to vacate the trial court’s grant of partial summary judgment on the tortious interference claim and remand in order for the trial court to first rule on the coverage issue.9 Accordingly, I dissent in part.

I am authorized to state that Judge Phipps joins in this dissent.

See Hicks v. McGee, 283 Ga. App. 678, 680 (2) (b) (642 SE2d 379) (2007).

See Dwyer v. McCoy, 236 Ga. App. 326, 328 (5) (512 SE2d 70) (1999).

(Emphasis supplied; punctuation omitted.) Kirkland v. Tamplin, 285 Ga. App. 241, 243 (1) (645 SE2d 653) (2007); see also J. Kinson Cook of Ga., Inc. v. Heery/Mitchell, 284 Ga. App. 552, 556-557 (b) (644 SE2d 440) (2007); Boeing Co. v. Blane Intl. Group, 276 Ga. App. 672, 675 (1) (624 SE2d 227) (2005); Sommers Co. v. Moore, 275 Ga. App. 604, 605 (621 SE2d 789) (2005).

See Gantt v. Patient Communications Systems, 200 Ga. App. 35, 40 (4) (406 SE2d 796) (1991) (“Georgia recognizes a cause of action where one maliciously and wrongfully and with intent to injure, harms the business of another.”); Chong v. Reebaa Constr. Co., 284 Ga. App. 830, 834-837 (4) (a), (b) (645 SE2d 47) (2007) (trial court erroneously directed verdict to defendant on plaintiffs tortious interference claim where evidence showed that defendant’s statement that the plaintiff was “a liar and a crook” resulted in business losses for plaintiff), rev’d on other grounds, Reebaa Constr. Co. v. Chong, 283 Ga. 222 (657 SE2d 826) (2008).

See Reny v. Sneed, 285 Ga. App. 722 (647 SE2d 379) (2007).

See Southern Guar. Ins. Co. v. Dowse, 278 Ga. 674, 676 (2) (605 SE2d 27) (2004).