COMCAST Corp

v. Warren, 286 Ga. App. 835, 650 S.E.2d 307 (2007), cert. denied, 2008 Ga. LEXIS 82 (Ga. 2008). 906 51-12-5.1 DAMAGES Uninsured motorist insurer not liable for punitive damages. — In an action against a tortfeasor’s estate defended by the tortfeasor’s uninsured motorist insurer, evidence of the tortfeasor’s intoxication was admissible as relevant to the issues of causation and damages, even though punitive damages could not be sought against the insurer. Shelter Mut. Ins. Co. v. Bryant, 220 Ga. App. 526, 469 S.E.2d 792 (1996). In a personal injury action arising from an automobile accident, the trial court did not abuse the court’s discretion when it prohibited evidence of the defendant’s prior conviction for drunk driving during the liability phase of a bifurcated trial, or when it refused to separate the issue of liability for punitive damages from the issue of compensatory damages. Webster v. Boyett, 269 Ga. 191, 496 S.E.2d 459 (1998), reversing Boyett v. Webster, 224 Ga. App. 843, 482 S.E.2d 377 (1997). Talking on cell phone while driving. — Trial court erred in denying an employee driver’s and the employer’s motion for summary judgment on the issue of punitive damages because the employee was traveling approximately 48 — 51 miles per hour in a 45 miles per hour zone while talking on the employee’s cell phone; this was insufficient under O.C.G.A. § 51-12-5.1(b). Archer Forestry, LLC v. Dolatowski, 331 Ga. App. 676, 771 S.E.2d 378 (2015). Trial court did not err in denying the defendant’s motion for directed verdict and judgment notwithstanding the verdict on punitive damages because, although the jury concluded that the defendant was not driving under the influence at the time of the collision, there were other grounds on which the jury could have awarded punitive damages as the trial court ruled that the defendant’s erratic driving raised a jury question as to whether the defendant’s actions showed wilful misconduct, malice, wantonness, or an entire want of care so as to raise a presumption of conscious indifference to the consequences. Dagne v. Schroeder, 336 Ga. App. 36, 783 S.E.2d 426 (2016). In automobile collision cases, punitive damages may be awarded when it is proven by clear and convincing evidence 51-12-5.1 that the defendant’s act or omissions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care that would raise the presumption of conscious indifference to the consequences. Fowler v. Smith, 237 Ga. App. 841, 516 S.E.2d 845 (1999). After the driver of the defendant company’s truck was involved in an accident, the defendants’ motion for summary judgment was improperly denied because the plaintiffs could not recover punitive damages against the defendant individual with an ownership interest in the company as the only active tortfeasor in the case was the driver. Corrugated Replacements, Inc. v. Johnson, 340 Ga. App. 364, 797 S.E.2d 238 (2017). Punitive damages against automobile insurer. — Evidence that an insurer took the claimant’s vehicle without the claimant’s permission, demanded storage fees after wrongfully taking the vehicle from a location that was not charging storage, and the callous disregard of the claimant’s rights as shown by an adjuster’s letters and deposition testimony, was sufficient to present a jury question regarding punitive damages. Jerrell v. Classic Ins. Co., 246 Ga. App. 565, 541 S.E.2d 53 (2000). Punitive damages of $1 million not excessive. — After a truck driver punched the plaintiff in the face during a road rage incident and the employer, by defaulting, admitted acting recklessly in allowing the truck driver to drive, a punitive damages award of $1 million, or 1.3 times compensatory damages, was not so excessive as to deny the employer due process; therefore, the employer was not entitled to a new trial. Aldworth Co. v. England, 276 Ga. App. 31, 622 S.E.2d 367 (2005), aff ’d in part and rev’d in part, 281 Ga. 197, 637 S.E.2d 198, 2006 Ga. LEXIS 883 (2006). Drunk driving supporting punitive damages. — Evidence that the defendant had a high level of intoxication only a short time after the collision gave rise to the reasonable inference that the defendant was also intoxicated at the time of the collision and, coupled with a past history of drinking and D.U.I., gave rise to the reasonable inference that the defen- 907 51-12-5.1 TORTS Other Cases (Cont’d) dant had been drinking and driving when the collision occurred and that the defendant sought to conceal such conduct by flight; thus, driving under the influence was an aggravated conduct supporting punitive damages. Langlois v. Wolford, 246 Ga. App. 209, 539 S.E.2d 565 (2000). Driving without license alone did not support punitive damages. — Trial court properly granted summary judgment for a motorist on an injured person’s claim for punitive damages sought on the sole ground that the motorist was knowingly driving without a valid driver’s license at the time of the accident; driving without a license was not the proximate cause of the accident and there was no pattern or policy of dangerous driving. Doctoroff v. Perez, 273 Ga. App. 560, 615 S.E.2d 623 (2005). Employer not vicariously liable for punitive damages when employee drunk. — In a negligence action, a truck driver’s employer could not be vicariously liable for punitive damages under O.C.G.A. § 51-12-5.1(f ) as the truck driver acted under the influence of alcohol when the truck driver was involved in a collision with an automobile driver. Am. Material Servs. v. Giddens, 296 Ga. App. 643, 675 S.E.2d 540 (2009). No punitive damages against server of alcohol. — Punitive damages are not authorized against a server of alcohol under O.C.G.A. § 51-12-5.1(f ). O.C.G.A. § 51-12-5.1(f ) provides that if the defendant acted or failed to act while under the influence of alcohol, there shall be no limitation regarding the amount which may be awarded as punitive damages against such an active tortfeasor; however, such damages shall not be the liability of any defendant other than an active tortfeasor; that is the defendant acting under the influence of alcohol. Capp v. Carlito’s Mexican Bar & Grill #1, Inc., 288 Ga. App. 779, 655 S.E.2d 232 (2007), cert. denied, 2008 Ga. LEXIS 317 (Ga. 2008). Arbitrator did not exceed authority by awarding punitive damages based on findings that the defendants violated express terms of a security agreement 51-12-5.1 expressly prohibiting the sale, transfer, or disposal of the collateral without the prior written consent of the plaintiff. Faiyaz v. Dicus, 245 Ga. App. 55, 537 S.E.2d 203 (2000). Reduction of award to authorized maximum. — Trial court correctly reduced an award to the maximum authorized by O.C.G.A. § 51-12-5.1(g) after a party failed to fulfill the requirements of the bright line rule requiring both a charge on specific intent to cause harm and a separate finding of specific intent to cause harm by the trier of fact. Scott v. Battle, 249 Ga. App. 618, 548 S.E.2d 124 (2001). Tortfeasor should not profit from wrongdoer. — Trial court did not abuse the court’s discretion in refusing to overrule the jury’s award of punitive damages in its entirety since the award achieved the legitimate goal of depriving the tortfeasor of the wrongdoer’s profitability. Scott v. Battle, 249 Ga. App. 618, 548 S.E.2d 124 (2001). Breach of fiduciary duty and conversion claims. — In a beneficiary’s suit against a trust’s attorneys and trustee, the trial court erred in finding that attorney’s fees under O.C.G.A. § 13-6-11 and punitive damages under O.C.G.A. § 51-12-5.1(b) were not available because the beneficiary’s claims for breach of fiduciary duty, conversion, and wrongful eviction should have remained in the case. Kahn v. Britt, 330 Ga. App. 377, 765 S.E.2d 446 (2014). Trusts. — In a breach of trust action, the trial court erred in denying the defendant brothers’ motion to reduce damages with respect to the punitive damage award because the jury specifically found that the brothers did not act with the specific intent to cause harm to the sister; the judgment could be affirmed only on the condition that the sister agreed to strike therefrom the award of punitive damages in excess of $250,000. Sims v. Heath, 258 Ga. App. 681, 577 S.E.2d 789 (2002) (Unpublished). In a trust beneficiary’s claim against a co-trustee and attorneys for the trust for breach of fiduciary duty, conversion, and wrongful eviction and trespass, because issues of fact remained as to those claims, 908 51-12-5.1 DAMAGES the beneficiary’s claims for bad faith expenses of litigation and punitive damages were not subject to summary judgment. Kahn v. Britt, 330 Ga. App. 377, 765 S.E.2d 446 (2014). Willful, wrongful conversion of property. — Award of $50,000 in punitive damages for a lessee’s willful conversion of a leased trailer was not excessive since clear and convincing evidence showed the lessee’s willful misconduct in refusing to return the trailer, concealing it, and misrepresenting its location to the lessor. Lawrence v. Direct Mortg. Lenders Corp., 254 Ga. App. 672, 563 S.E.2d 533 (2002). Building in violation of ordinance resulting in nuisance. — When the evidence showed that a homebuilder, with willful misconduct and indifference to the consequences, built a house too close to a homeowner’s home, in violation of zoning laws, the evidence supported the jury’s finding of a nuisance and the award of punitive damages. Segars v. Cleland, 255 Ga. App. 293, 564 S.E.2d 874 (2002). Apartment owners. — In a wrongful death action against an apartment complex based on the strangulation of a tenant by a maintenance worker, a directed verdict on the issue of punitive damages was properly denied because there was sufficient clear and convincing evidence to create a jury issue on whether the complex displayed a conscious indifference to the possibility that an under-investigated employee was involved in a series of crimes that could foreseeably lead to violent results for one of its tenants. TGM Ashley Lakes, Inc. v. Jennings, 264 Ga. App. 456, 590 S.E.2d 807 (2003). Punitive damages awarded in trespass case. — Jury was entitled to award a property owner compensatory and punitive damages pursuant to O.C.G.A. §§ 51-9-3 and 51-12-5.1 because a willful trespass occurred when a neighbor directed the construction of a sewer lateral across the owner’s property to tie into the owner’s sewer line when the neighbor knew that the neighbor had neither a written easement nor permission from the owner to do so. LN West Paces Ferry Assocs., LLC v. McDonald, 306 Ga. App. 641, 703 S.E.2d 85 (2010). Punitive damages denied in trespass case. — LLC that declared Chapter 51-12-5.1 11 bankruptcy committed trespass in violation of O.C.G.A. § 51-9-10 when the LLC interfered with a pilot’s right to use an airport the LLC owned after the LLC gave the pilot permission to do so, but the pilot’s right was limited to use of the taxiways and runway and the pilot violated O.C.G.A. § 51-9-10 by entering the airport for other purposes after being told not to do so; although the court awarded the LLC $100 for the pilot’s trespass and the pilot $600 for the LLC’s trespass, neither party showed that the opposing party committed a private nuisance in violation of Georgia law, and the court refused to award punitive damages under O.C.G.A. § 51-12-5.1 or attorney’s fees under O.C.G.A. § 13-6-11 to either party. Flyboy Aviation Props., LLC v. Franck (In re Flyboy Aviation Props., LLC), 525 B.R. 510 (Bankr. N.D. Ga. 2015). Outdoor fireplace and resultant smoke raises issues of punitive damages. — Trial court erred by granting neighbors’ motion for summary judgment in property owners’ action to recover damages arising from smoke emanating from the neighbors’ outdoor fireplace because there was some evidence of acts by the neighbors that could allow a jury to consider a claim for punitive damages; the neighbors continued to use the fireplace after the owners notified the neighbors that the fireplace caused smoke to enter the owners’ home, resulting in physical discomfort to the owners and interfering with the owners’ use and enjoyment of the owners’ home. Weller v. Blake, 315 Ga. App. 214, 726 S.E.2d 698 (2012). Legal malpractice. — Trial court properly awarded partial summary judgment to an attorney because the damages flowing from the client’s separate claim that the attorney fraudulently misrepresented the attorney’s expertise or experience to induce employment were no different from the damages flowing from the client’s claim of alleged legal malpractice against the attorney. Therefore, even if there had been evidence to support the allegation of fraud, there would have been no separate cause of action for fraud apart from the malpractice claim, but simply a claim for the award of punitive damages based on fraud as an aggravating circum- 909 51-12-5.1 TORTS Other Cases (Cont’d) stance in the malpractice claim. Griffin v. Fowler, 260 Ga. App. 443, 579 S.E.2d 848 (2003). When the plaintiff patient sued the defendant manufacturer of a surgically implanted medical device alleging design defects, breach of warranty, failure to warn of risks, and breach of contracts to pay for surgeries, the manufacturer’s motion for summary judgment on the issue of the patient’s ability to recover punitive damages under O.C.G.A. § 51-12-5.1 was denied because the patient testified that the manufacturer’s misrepresentations that it would pay for the third surgery induced the patient to undergo additional surgery, and relying on the representations, the patient incurred additional medical expenses that the manufacturer refused to pay, which exposed the patient to financial ruin. Trickett v. Advanced Neuromodulation Sys., 542 F. Supp. 2d 1338 (S.D. Ga. 2008). Trial court did not err in awarding summary judgment to an attorney and a law firm in a former client’s legal malpractice action seeking punitive damages because there was no evidence from which a jury could properly conclude that an award of punitive damages was warranted; although the client pointed to evidence that the attorney could have breached the standard of care, that evidence did not show anything more than, at worst, gross negligence. Duncan v. Klein, 313 Ga. App. 15, 720 S.E.2d 341 (2011). Financial records of law firm against which punitive damages sought. — When the trial court determined that jury issues remained as to a claim for punitive damages against a law firm, the trial court abused the court’s discretion in denying production of any of the law firm’s financial records until after the jury rendered the jury’s verdict. Smith v. Morris, Manning & Martin, LLP, 293 Ga. App. 153, 666 S.E.2d 683 (2008). Insurer not obligated to defend its insured in action requesting punitive damages. — When an amended complaint sought punitive damages, describing acts and omissions as willful misconduct, malice, fraud, wantonness, 51-12-5.1 oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences and their effects, an insurer was not obligated to defend its insured in such action. Ga. Farm Bureau Mut. Ins. Co. v. Hall County, 262 Ga. App. 810, 586 S.E.2d 715 (2003). Punitive damages proper against real estate broker. — When a business broker’s client sought punitive damages against the broker for filing a lien against the client’s business, which was based on a false document, sufficient evidence supported the jury’s award of such damages, under O.C.G.A. § 51-12-5.1(b), as undisputed evidence showed the broker intentionally altered and then filed a sales agreement with a financing statement to falsely reflect that the broker was a party to the sales agreement. Bienert v. Dickerson, 276 Ga. App. 621, 624 S.E.2d 245 (2005). Breach of fiduciary duty as executor of estate. — Beneficiaries of a will sued the decedent’s grandchild for conversion of stock the beneficiaries alleged was intended to be part of the decedent’s estate; as the jury found the stock was not a gift, the jury necessarily found that the stock was entrusted to the grandchild as a purported co-executor. The grandchild’s breach of fiduciary duty supported an award of punitive damages to the beneficiaries under O.C.G.A. § 51-12-5.1(b). Bunch v. Byington, 292 Ga. App. 497, 664 S.E.2d 842 (2008). Punitive damages to make plaintiff whole improper. — A customer sued a company for falsely reporting that the customer did not pay a bill, which damaged the customer’s credit rating. As the trial court’s written judgment contained no explicit findings that the company acted willfully, maliciously, or with conscious indifference — requirements for a punitive damage award under O.C.G.A. § 51-12-5.1(b) — and the trial court orally stated the court awarded punitive damages to make the customer whole, which was improper under § 51-12-5.1(c), that award could not stand. Infinite Energy, Inc. v. Cottrell, 295 Ga. App. 306, 671 S.E.2d 294 (2008). 910 51-12-5.1 51-12-5.1 DAMAGES Defamation and breach of fiduciary claims supported punitive damages. — In a suit brought by a golf course development company against two other members of a limited liability company and a housing authority, the trial court erred by dismissing the golf course development company’s claim for punitive damages since the company’s additional claims of breach of fiduciary duty and defamation supported such damages, and the company alleged that the other two members of the limited liability company behaved maliciously, in bad faith, and with reckless disregard for the legality of their actions when those entities negotiated the golf course development out of the project. Perry Golf Course Dev., LLC v. Hous. Auth., 294 Ga. App. 387, 670 S.E.2d 171 (2008). Malicious prosecution. — A contractor using the threat of criminal prosecution in an attempt to pressure a property owner into paying a disputed bill, which resulted in the owner being arrested and jailed, supported an award of punitive damages under O.C.G.A. § 51-12-5.1(b). Gooch v. Tudor, 296 Ga. App. 414, 674 S.E.2d 331 (2009). Punitive damages improper in investor’s summary judgment against corporation. — Because a corporation, the corporation’s chief executive officer, and the corporation’s chief financial officer did not demonstrate that they were entitled to judgment as a matter of law on an inventor’s claims for money had and received and for conversion, summary judgment dismissing the inventor’s claims for punitive damages and litigation expenses based on those causes of action was improper. Fernandez v. WebSingularity, Inc., 299 Ga. App. 11, 681 S.E.2d 717 (2009). Fact that a creditor won an award of punitive damages under O.C.G.A. § 51-12-5.1(f ) afforded an insufficient basis for summary judgment on the creditor’s claim that the obligation was nondischargeable in a Chapter 7 case because an ‘‘entire want of care,’’ which was one possible basis for the judgment, was distinguishable from the ‘‘intent’’ or ‘‘willfulness’’ required to establish a right to nondischargeability under 11 U.S.C. § 523(a)(6). Terhune v. Houser (In re Houser), 458 B.R. 771 (Bankr. N.D. Ga. 2011). Punitive damages for tortuous interference with resale of equipment. — Debtor established the debtor was entitled to damages for tortious interference with the debtor’s resale of medical equipment from defendant manufacturers. Bad faith under O.C.G.A. § 13-6-11 required more than bad judgment or negligence, but the debtor established a dishonest purpose and a breach of a known duty under O.C.G.A. § 51-12-5.1(b). Bailey v. Hako-Med USA, Inc. (In re Bailey), No. 09-4002, 2010 Bankr. LEXIS 6300 (Bankr. S.D. Ga. Nov. 16, 2010). Medical clinic with pattern of unsanitary conditions. — In a medical malpractice suit, the award of punitive damages to the plaintiffs was supported based on the evidence demonstrating that the clinic had a pattern of maintaining poor sanitary conditions and that the clinic failed to improve such conditions when presented with suggestions on how to do so, which was sufficient for the jury to have found, under the clear and convincing standard, that the defendants’ negligence exhibited an entire want of care and a conscious indifference to consequences. Ga. Clinic, P.C. v. Stout, 323 Ga. App. 487, 747 S.E.2d 83 (2013). Cell phone use. — After an employee collided with a vehicle while driving a tractor-trailer, the employee was not entitled to summary judgment on the punitive damages claim because, although the proper use of a cell phone while driving was permissible in Georgia, the court could not find as a matter of law that the plaintiffs could not prove aggravating circumstances that would warrant an award of punitive damages; whereas, the punitive damages claims against other defendants failed because the plaintiffs presented no evidence that these defendants actually knew about the nature of the employee’s cell phone use. Little v. McClure, No. (MTT), 2014 U.S. Dist. LEXIS 120681 (M.D. Ga. Aug. 29, 2014). Procedure Multiple causes of action. — The trial court did not err in allowing a verdict for punitive damages under O.C.G.A. 911 51-12-5.1 TORTS Procedure (Cont’d) § 51-12-5.1 to be considered by the jury when an award was made under O.C.G.A. § 51-12-6 for a claim in which the entire injury was to the peace, happiness, or feelings of the plaintiff since a number of distinct tortious acts and causes of action were pled separately, and while the award theoretically could have been based entirely on a claim of injury to the peace and feelings of the plaintiff, it was equally possible that the jury awarded compensatory damages and punitive damages on one of the plaintiff ’s other claims or on a combination of claims. Alternative Health Care Sys. v. McCown, 237 Ga. App. 355, 514 S.E.2d 691 (1999). Because the appeals court found that other intentional tort claims survived summary judgment which would authorize the imposition of punitive damages if the jury were to find that a retailer and its employees acted with a wanton disregard of a nine-year-old child’s rights, the trial court did not err by denying summary judgment on these grounds. Todd v. Byrd, 283 Ga. App. 37, 640 S.E.2d 652 (2006), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d. 7 (2008). Conflict with federal rule for pleading. — Because O.C.G.A. § 51-12-5.1(d)(1) unavoidably conflicted with Fed. R. Civ. P. 54(c) on the procedural matter of whether the plaintiffs in a breach of contract suit that also alleged an independent tort, the unauthorized excavation and removal of dirt from another person’s land, were required to plead punitive damages in the complaint, a federal district court sitting in diversity applied Rule 54(c) and held that punitive damages need not be specifically pled; therefore, the court denied the plaintiffs’ motion to amend their complaint. Toler v. Engelhard Corp., No. 5:04-CV-45 (DF), 2006 U.S. Dist. LEXIS 65526 (M.D. Ga. Sept. 14, 2006). Failure to object to absence of special interrogatory. — The defendant’s failure to object after the entry of judgment amounted to a waiver of the special interrogatory to the jury mandated by paragraph (d)(1) of O.C.G.A. § 51-12-5.1. Kopp v. First Bank, 235 Ga. App. 520, 509 S.E.2d 384 (1998). 51-12-5.1 Bifurcated trial. — In an invasion of privacy case, even though the evidence was insufficient to support an award of punitive damages, the entire award (including general damages of $500,000) would not be vacated if the trial court held a bifurcated trial and the general damage award was identifiable and separable. Multimedia WMAZ, Inc. v. Kubach, 212 Ga. App. 707, 443 S.E.2d 491 (1994). Trial court did not err in failing to bifurcate the proceeding as required by subsection (d) of O.C.G.A. § 51-12-5.1 after the defendant waived such an objection by acquiescing in the form of the verdict and failed to raise the issue at trial. Martin v. Williams, 215 Ga. App. 649, 451 S.E.2d 822 (1994). In a suit brought by a biological father to recover one-half of the proceeds of a settlement of a wrongful death action arising out of the death of a son, which the father brought against that child’s mother and others, the trial court abused the court’s discretion in bifurcating the trial in the manner chosen since the trial court did not follow any of the procedures set forth in O.C.G.A. § 51-12-5.1, regarding punitive damages; secondly, the manner of bifurcation unfairly limited the father’s right of cross-examination regarding post-death facts involving allegations by the father that the child’s mother and the others took steps to conceal the recovery and to otherwise defraud the father. Bolden v. Ruppenthal, 286 Ga. App. 800, 650 S.E.2d 331 (2007), cert. denied, 2007 Ga. LEXIS 756 (Ga. 2007). Severance required. — Statute required that issues of the liability for punitive damages and the amount of punitive damages be severed; thus, the trial court did not abuse the court’s discretion in severing those issues in the customer and spouse’s case against the pharmacist and pharmacy for dispensing the wrong drug to the customer. Moresi v. Evans, 257 Ga. App. 670, 572 S.E.2d 327 (2002). Error to not allow closing argument in punitive damage phase. — Trial court committed reversible error in refusing to allow counsel to present closing argument to the jury at the phase of the trial in which the amount of the punitive-damage award was adjudicated, 912 51-12-5.1 DAMAGES since the right of the parties to be represented by counsel at all stages of a trial is a fundamental component of American jurisprudence. McClure v. Gower, 259 Ga. 678, 385 S.E.2d 271 (1989). Error to allow defendant to make opening, closing arguments. — After evidence was introduced during the initial phase of the trial in defense of the plaintiff ’s claim for punitive damages, the trial court erred in permitting the defendant to make the opening and concluding argument in the punitive damages phase of the trial. Combustion Chems., Inc. v. Spires, 209 Ga. App. 240, 433 S.E.2d 60 (1993). Instruction that 75 percent of award paid to state was harmful error. — Instructing the jury that the state would receive 75 percent of any punitive damages awarded created a substantial risk that the jury was improperly influenced by this consideration to adjust the jury’s award of punitive damages in a manner which prejudiced the defendants; accordingly, the instruction was harmful error requiring reversal of the award of punitive damages. Uniroyal Goodrich Tire Co. v. Ford, 218 Ga. App. 248, 461 S.E.2d 877 (1995), aff ’d, 276 Ga. 226, 476 S.E.2d 565 (1996). Standard of proof of specific intent to harm. — Trial court did not err in instructing the jury that the jury was permitted to award unlimited damages if the jury found by a preponderance of the evidence that there was a specific intent to harm as the applicable statute did not mention a specific standard of proof and, thus, the common law burden of proof in cases involving punitive damages applied. Kothari v. Patel, 262 Ga. App. 168, 585 S.E.2d 97 (2003). Trial court erred in awarding punitive damages in excess of $250,000 because the court’s finding that the defendant intended to specifically harm the plaintiff was not supported by the record since the plaintiff did not exist at the time of the tortious actions and was created for the sole purpose of suing the defendants on the investors’ behalf; thus, the defendants could not have specifically intended to harm the plaintiff. Ballistics Research, Inc. v. BRI Funding, LLC, 336 Ga. App. 77, 783 S.E.2d 678 (2016). 51-12-5.1 Instruction as to ‘‘clear and convincing evidence.’’ — It was not error for the trial court to refuse a requested instruction which would inform the jury only that ‘‘clear and convincing evidence’’ is a greater standard of proof than the preponderance of the evidence standard. Such an instruction would not properly characterize ‘‘clear and convincing evidence’’ as being an intermediate standard of proof and would leave the jury without any guidance as to the extent to which the ‘‘clear and convincing evidence’’ standard was greater than the preponderance of the evidence standard. Clarke v. Cotton Clarke Communications, Inc., 207 Ga. App. 883, 429 S.E.2d 291 (1993), aff ’d, 263 Ga. 861, 440 S.E.2d 165 (1994). The trial court erred in failing to define the clear and convincing evidence standard required for punitive damages in the court’s charge to the jury. Clarke v. Cotton, 263 Ga. 861, 440 S.E.2d 165 (1994). Because an owner and the owner’s agent did not object to the trial court’s failure to give a certain jury instruction, because their liability had already been established as a matter of law by way of their default, and because they failed to show harm resulting from the trial court’s failure to define the clear and convincing evidence standard in O.C.G.A. § 51-12-5.1(b), they failed to preserved their claims on appeal in accordance with O.C.G.A. § 5-5-24(a). Waller v. Rymer, 293 Ga. App. 833, 668 S.E.2d 470 (2008). ‘‘Clear and convincing’’ evidence instruction required. — Even though sufficient evidence was presented to submit the question of punitive damages to the jury, the evidence was not overwhelming and the trial court erred in not providing the jury any guidance on the meaning of ‘‘clear and convincing’’ evidence. H & H Subs, Inc. v. Lim, 223 Ga. App. 656, 478 S.E.2d 632 (1996). Instruction and finding on specific intent on conspiracy count. — The trial court did not err in failing to limit the amount of the punitive damages award to $250,000 because the jury was specifically instructed that for the plaintiff to recover damages on a conspiracy count the plaintiff must demonstrate that the defendant acted with the specific intent to drive the 913 51-12-5.1 TORTS Procedure (Cont’d) plaintiff out of business and the jury’s response on a special verdict form was tantamount to a finding that the defendant had acted with specific intent to cause harm to the plaintiff. Alta Anesthesia Assocs. of Ga., P.C. v. Gibbons, 245 Ga. App. 79, 537 S.E.2d 388 (2000). Jury instructions on battery claim in error resulting in no punitive damages. — District court properly set aside a punitive damages award for an employee under a Georgia state law battery claim because, inter alia, compensatory or nominal damages had to be awarded before punitive damages could be awarded, and the employee invited error in the jury instructions since the employee did not object to the instructions as given with regard to damages for battery. Smith v. Metro. Sec. Servs., No. 12-12711, 2013 U.S. App. LEXIS 19240 (11th Cir. Sept. 18, 2013) (Unpublished). An award of punitive damages could not be affirmed after the trial court declined to follow the procedures and standards required by O.C.G.A. § 51-12-5.1, awarded punitive damages to a party who did not pray for them, and gave an outdated charge on punitive damages. Drug Emporium, Inc. v. Peaks, 227 Ga. App. 121, 488 S.E.2d 500 (1997). In an employer’s suit against a former employee for breach of fiduciary duty, and other claims, the jury’s award of $650,000 in punitive damages could not be affirmed because there was no evidence in the record that the employer sought a charge on specific intent to cause harm or that the jury made a separate finding of specific intent to cause harm, and, as a result, the statutory cap of such an award to $250,000 could not be exceeded. Quay v. Heritage Fin., Inc., 274 Ga. App. 358, 617 S.E.2d 618 (2005). Denial of punitive damages award erroneous. — The trial court erred in concluding record did not warrant an award of punitive damages after the driver struck the defendant’s vehicle twice and kept pushing the defendant down the road, causing the defendant’s injury. Smith v. Tommy Roberts Trucking Co., 209 Ga. App. 826, 435 S.E.2d 54 (1993). 51-12-5.1 After the defendants constructed a drainage system, through a dry stream bed, which concentrated and directed water onto the plaintiff ’s property and they were on notice of a water discharge problem even before the stream bed was constructed, but never acted to abate it, this was sufficient evidence of ‘‘conscious indifference’’ to authorize a jury to award punitive damages and the trial court’s grant of a motion for directed verdict on the issue of punitive damages was erroneous. Baumann v. Snider, 243 Ga. App. 526, 532 S.E.2d 468 (2000). Nolo contendere plea as evidence. — O.C.G.A. § 17-7-95 prohibits use of a prior plea of nolo contendere as evidence relevant to the issue of punitive damages. Holt v. Grinnell, 212 Ga. App. 520, 441 S.E.2d 874 (1994). In an action for injuries arising from an automobile accident, after the defendant pled guilty to driving under the influence of alcohol, evidence that the defendant had twice previously committed the offense of DUI was admissible for the purpose of determining punitive damages as long as there was no reference to prior pleas of nolo contendere, or to the disposition of DUI charges resulting from such pleas. Holt v. Grinnell, 212 Ga. App. 520, 441 S.E.2d 874 (1994). Prejudicial evidence not admissible. — Even though evidence may have been relevant to the issue of punitive damages, the trial court did not abuse the court’s discretion in excluding the evidence when its admission was potentially prejudicial. Goss v. Total Chipping, Inc., 220 Ga. App. 643, 469 S.E.2d 855 (1996). Default judgment did not authorize punitive damages. — A default judgment on the issue of liability was not sufficient to authorize an award of punitive damages because no evidence on liability for punitive damages was presented at the hearing on damages. Drug Emporium, Inc. v. Peaks, 227 Ga. App. 121, 488 S.E.2d 500 (1997). Trial court erred in various ways. — Trial court erred when the court denied a bank’s motion for a new trial in a fraud case because the amount of damages awarded was excessive in that the evidence adduced at trial did not authorize 914 51-12-5.1 DAMAGES the jury’s award of $100,000 against the bank because the suing construction company alleged and proved only economic harm in an amount substantially less than that award, namely $9,400 via a materialman’s lien, and renovation expenses in the amount of $23,000. Further, the jury’s award of an additional $55,000 against the bank as punitive damages was erroneous since there was no charge on punitive damages, let alone proper guidance on the clear and convincing evidence required; the verdict form did not pose the question of punitive damages except by quotation of O.C.G.A. § 51-12-5.1(f ), which required the jury to find specific intent to cause harm before the jury could award punitive damages in excess of $250,000; and the proceedings were not properly bifurcated. First Southern Bank v. C & F Servs., 290 Ga. App. 304, 659 S.E.2d 707 (2008). Summary judgment. — Plaintiff failed to raise a material issue of fact as to the availability of punitive damages after the vehicle manufacturer complied with applicable federal regulations and the defendant believed it was complying with regulatory agencies’ requirements. Welch v. GMC, 949 F. Supp. 843 (N.D. Ga. 1996). In an action for contamination of property, insofar as the plaintiffs could prove that contamination laid down continued to migrate and was not abated by the defendant after notice, it was error to grant summary judgment on the issue of punitive damages. Smith v. Branch, 226 Ga. App. 626, 487 S.E.2d 35 (1997). Since there was evidence of an intentional and complete absence of security measures taken to protect customers in a grocery store parking lot, the trial court erred in granting the store summary judgment on the plaintiff ’s claim for punitive damages. Carlock v. Kmart Corp., 227 Ga. App. 356, 489 S.E.2d 99 (1997). After the plaintiff tenant was beaten, robbed, and raped in her apartment by an intruder, fact issues precluded summary judgment on her claim for punitive damages because a jury could conclude that the defendant apartment owner was not providing any security for its residents, even though it had knowledge of a prior attack on the plaintiff. Doe v. Briargate 51-12-5.1 Apts., Inc., 227 Ga. App. 408, 489 S.E.2d 170 (1997). Summary judgment was precluded on the issue of punitive damages in a consumer’s action against the manufacturer of lemon-scented bleach when the manufacturer added the lemon scent to mask the noxious odor of the bleach, although it was aware of the dangers of adding the scent, which enhanced the danger of the product to consumers, from which a jury could infer a conscious disregard for the safety of others. Zeigler v. Clowhite Co., 234 Ga. App. 627, 507 S.E.2d 182 (1998). Summary judgment was precluded because the failure to provide a real security patrol for an apartment complex and to have a fenced and gated access gave rise to a jury issue as to an entire want of care, which gave rise to a presumption of a conscious indifference to the consequences for tenants. FPI Atlanta, L.P. v. Seaton, 240 Ga. App. 880, 524 S.E.2d 524 (1999). Summary judgment in favor of the defendants was erroneous after the plaintiffs presented evidence of excessive stormwater runoff and sediment deposit, flooding of their property, and pollution of their ponds directly from defendant developer’s subdivision and that they repeatedly asked the developers to correct the problems. Tyler v. Lincoln, 272 Ga. 118, 527 S.E.2d 180 (2000). Because there was no error in the trial court’s grant of summary judgment on the plaintiff ’s breach of fiduciary duty claim, likewise, summary judgment on the plaintiff ’s punitive damages claim was appropriate because that claim was dependent upon the merits of the breach of fiduciary duty claim. Nelson & Hill, P.A. v. Wood, 245 Ga. App. 60, 537 S.E.2d 670 (2000). Evidence of circumstances of aggravation or outrage was sufficient to defeat a motion for summary judgment on punitive damages. Schoenbaum Ltd. Co., LLC v. Lenox Pines, LLC, 262 Ga. App. 457, 585 S.E.2d 643 (2003). Absent a confidential relationship between a lienholder and a prospective buyer of a vehicle subject to a lien, and absent any duty on the lienholder to disclose any problems with the vehicle’s title to the buyer, the lienholder was properly granted summary judgment on the buy- 915 51-12-5.1 TORTS Procedure (Cont’d) er’s negligence, fraudulent concealment, and derivative claim for punitive damages. Lilliston v. Regions Bank, 288 Ga. App. 241, 653 S.E.2d 306 (2007), cert. denied, 2008 Ga. LEXIS 275 (Ga. 2008). Copyright owner’s claim for punitive damages for an unfair competition claim was not appropriate under O.C.G.A. § 51-12-5.1 because the record contained very little evidence of willful misconduct, malice, fraud, wantonness, oppression, or conscious indifference and further whether the customer’s actions were willful, wanton, or malicious to sustain a claim for punitive damages was an issue for a jury and not for summary judgment. SCQuARE Int’l, Ltd. v. BBDO Atlanta, Inc., 455 F. Supp. 2d 1347 (N.D. Ga. 2006). Wrongful foreclosure. — Fact questions regarding whether a mortgagee intended to cause harm when it initiated a foreclosure proceeding against mortgagors precluded summary judgment regarding whether any punitive damages that might be awarded to the mortgagors on their attempted wrongful foreclosure claim would be capped at $250,000 pursuant to O.C.G.A. § 51-12-5.1(g); the mortgagors alleged that the mortgagee acted with a conscious disregard of the consequences by initiating a foreclosure action even though the mortgagors’ loan was not in default. Hauf v. HomEq Servicing Corp., No. 4:05-CV-109 (CDL), 2007 U.S. Dist. LEXIS 9439 (M.D. Ga. Feb. 9, 2007). Issue was one for jury to resolve. — As claims survived upon reversal of a trial court’s summary judgment rulings which authorized punitive damages in an unarmed visitor’s multi-tort action, arising from having been shot by an off-duty police officer who was providing security services to the complex, the issue was properly one for the jury to resolve. Miller v. City Views at Rosa Burney Park GP, LLC, 323 Ga. App. 590, 746 S.E.2d 710 (2013). Default judgment case. — Even if the trial court erred in awarding punitive damages in a default judgment case by not making a specific finding on a verdict form that punitive damages were authorized, 51-12-5.1 the error was harmless; prior to awarding the punitive damages, the trial court conducted a separate hearing and received evidence on damages thereby satisfying statutory requirements. Hill v. Johnson, 210 Ga. App. 824, 437 S.E.2d 801 (1993). In a medical malpractice case, when, because of default, a jury trial was held on the issue of damages only, including the issue of punitive damages, evidence of the doctor’s conduct was both relevant and necessary to deter or punish that conduct. Daniel v. Causey, 220 Ga. App. 589, 469 S.E.2d 839 (1996). Facts not warranting punitive damages. — In action against seller in connection with repossession of a vehicle which was the subject of an installment contract, the buyer was not entitled to punitive damages when the buyer’s account was past due for three months, no claim for outstanding payments had been made against the buyer’s disability insurer, and there was no evidence that the seller behaved maliciously or with conscious indifference to the consequences of the repossession. Hillman v. GMAC, 210 Ga. App. 837, 437 S.E.2d 803 (1993). In an action by an automobile dealership franchisee against the franchisor for wrongful termination of the franchise agreement, the issue of punitive damages should not have been submitted to the jury under O.C.G.A. § 51-12-5.1 inasmuch as the franchisor had not been charged with a tort. Moore v. American Suzuki Motor Corp., 211 Ga. App. 337, 439 S.E.2d 43 (1993). In a product liability action against a tire manufacturer, even though evidence showed continuing manufacturing and quality control problems which were known to the manufacturer and which resulted in higher than normal belt/tread separation problems, there was no clear and convincing evidence that the manufacturer engaged in wilful conduct by which the manufacturer knowingly placed the plaintiffs or others in danger. Uniroyal Goodrich Tire Co. v. Ford, 218 Ga. App. 248, 461 S.E.2d 877 (1995), aff ’d, 276 Ga. 226, 476 S.E.2d 565 (1996). When an auto insurer failed to notify the Division of Motor Vehicles that a stolen vehicle had been recovered prior to its 916 51-12-5.1 DAMAGES sale to a salvage company and a purchaser of the vehicle was later arrested while operating the vehicle and spent approximately eight hours in jail, the facts did not justify an award of punitive damages. Georgia Farm Bureau Mut. Ins. Co. v. Miller, 222 Ga. App. 95, 473 S.E.2d 189 (1996). Punitive damages were not recoverable in the absence of evidence that a motor vehicle collision resulted from a pattern or policy of dangerous driving on the part of the defendant. Carter v. Spells, 229 Ga. App. 441, 494 S.E.2d 279 (1997). In an action for negligence resulting in an automobile collision causing injuries, the trial court did not err in granting the defendant’s motion for partial summary judgment on the issue of punitive damages since there was no evidence that the defendant caused the collision through a ‘‘pattern or policy of dangerous driving.’’ Miller v. Crumbley, 249 Ga. App. 403, 548 S.E.2d 657 (2001). Evidence of failure to comply with fire safety standards. — The rules and regulations of the Fire Safety Commissioner, having the force and effect of law, were applicable to the landlord of an apartment building, and the landlord’s failure to comply with mandatory safety provisions of a fire or building exit code provided a clear and convincing evidentiary basis for an award of punitive damages. Windermere v. Bettes, 211 Ga. App. 177, 438 S.E.2d 406 (1993). Review of evidence presented during punitive damages phase. — O.C.G.A. § 51-12-5.1 vests trial courts with discretion to control the litigants’ presentation of evidence during the punitive damages phase of a trial in the same manner that evidentiary matters are regulated generally; thus, the decisions regarding such evidence would be reviewed only for an abuse of discretion. Softball Country Club - Atlanta v. Decatur Fed. Sav. & Loan Ass’n, 121 F.3d 649 (11th Cir. 1997). Punitive damages claim required to be submitted to the jury. — Trial court erred in ruling that a camp’s punitive damages issue could not be presented to the jury because the evidence presented a material question as to whether a mari- 51-12-5.1 na’s trespass and nuisance onto the camp’s property was knowing, willful, and a conscious indifference to the property rights of the camp; thus, the issue regarding the camp’s claim for punitive damages was required to be submitted to the jury. Camp Cherokee, Inc. v. Marina Lane, LLC, 316 Ga. App. 366, 729 S.E.2d 510 (2012). Failure of court to make specific findings not reversible error. — Trial court’s failure to make a specific finding through a special verdict form that punitive damages were awardable was not reversible error since the court set forth findings of fact and conclusions of law making it clear that the court deemed the defendant’s actions constituted willful and malicious misconduct and the defendant failed to show any harm due to the deviation from the special verdict form. Wal-Mart Stores, Inc. v. Forkner, 221 Ga. App. 209, 471 S.E.2d 30 (1996). Evidence relating to attorneys’ fees and litigation expenses should have been excluded during the punitive damages phase of the trial. H & H Subs, Inc. v. Lim, 223 Ga. App. 656, 478 S.E.2d 632 (1996). Injured party failed to show that the injured party was justified in seeking punitive damages or attorney fees from a welder based on a difficult welding job because the case did not involve special circumstances of aggravation or outrage; further, the injured party failed to show that there was information that led the injured party to believe that the injured party was entitled to punitive damages or attorney fees. Trotter v. Summerour, 273 Ga. App. 263, 614 S.E.2d 887 (2005). Res judicata. — Punitive damages served a public interest and were intended to protect the general public, and when the state sought punitive damages in a prior suit it did so as parens patriae, representing the interests of all Georgia citizens, including an administrator of a decedent’s estate; the state and the administrator were privies in that prior case, and, pursuant to res judicata, a release executed as part of a settlement of that prior case barred punitive damages in a later case brought by the administrator alleging the same products liability 917 51-12-5.1 TORTS Procedure (Cont’d) theory. Brown & Williamson Tobacco Corp. v. Gault, 280 Ga. 420, 627 S.E.2d 549 (2006). Punitive damages even if breach of contract also present. — Whether the conversion was deemed to have occurred in Georgia (where the engines were built down) or, more plausibly, in Minnesota (where they were attached to the airframes), the jury, if the jury found the defendant’s actions sufficiently willful and malicious, may award punitive damages; punitive damages were awarded because of tortious conduct, not because a plaintiff sustained a particular injury, and such an award was not precluded merely because a breach of contract was present. First Sec. Bank, N.A. v. Northwest Airlines, 51-12-6 Inc., No. 95-12103-RGS, 2001 U.S. Dist. LEXIS 26601 (D. Mass. Jan. 3, 2001). Jury, not judge, must determine both whether and in what amount to award punitive damages. — Tenant whose former landlord cashed a check for property taxes that the tenant mailed to the landlord by mistake was entitled to summary judgment on a claim for conversion and bad faith attorney’s fees under O.C.G.A. § 13-6-11; however, under O.C.G.A. § 51-12-5.1(d), the question of whether punitive damages should be awarded and the amount thereof was for a jury. Covington Square Assocs., LLC v. Ingles Mkts., Inc., 300 Ga. App. 740, 686 S.E.2d 359 (2009), aff ’d in part and rev’d in part, 287 Ga. 445, 696 S.E.2d 649 (2010).