Jennifer Harmon v. Progressive Premier Insurance Company of Illinois ( 2022 )

FIFTH DIVISION
MCFADDEN, P. J.,
GOBEIL and PINSON, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
June 6, 2022
In the Court of Appeals of Georgia
A22A0695. HARMON v. PROGRESSIVE PREMIER
INSURANCE COMPANY OF ILLINOIS.
PER CURIAM.
Jennifer Harmon filed this direct appeal from the trial court’s orders granting
summary judgment to Progressive Premier Insurance Company of Illinois
(“Progressive”) and denying Harmon’s motion to vacate the grant of summary
judgment. Progressive has moved to dismiss the appeal.
The relevant facts show that Jennifer Harmon allegedly sustained injuries in
a car accident, and she filed a renewal action seeking damages. In addition to the
allegedly negligent defendant, Harmon served her complaint on Progressive in
accordance with OCGA § 33-7-11 (d), the Georgia Uninsured Motorist Act.
Progressive filed a cross-claim against the alleged tortfeasor.
Progressive moved for summary judgment, arguing that Harmon’s failure to
provide timely notice of the accident barred recovery as a matter of law. Under the
insurance policy, insureds were required to “promptly report each accident or loss
even if you or the person seeking coverage is not at fault.” Progressive tendered the
affidavit of an employee who averred that the company first learned of the February
2017 accident when Harmon filed suit in January 2021.
Harmon did not file a response to the summary judgment motion, and the trial
court granted the motion on August 18, 2021. In the order, the trial court noted that
Harmon had not filed a response.
Harmon filed an emergency motion to vacate the grant of summary judgment,
asserting that the e-filed motion had been sent to her attorney’s spam folder. The trial
court denied the motion to vacate on October 20, 2021, and Harmon filed this appeal.
Progressive has moved to dismiss the appeal. Because we lack jurisdiction over
the appeal, we agree that we must dismiss it.
As a general rule, a direct appeal requires that the judgment or order appealed
be final, which means the case is no longer pending in the court below. See Fein v.
Chenault, 330 Ga. App. 222, 227 (767 SE2d 766) (2014). When a direct appeal is
filed from a non-final order, we ordinarily lack jurisdiction to consider the appeal. See
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id. The law permits, however, a direct appeal from certain non-final orders, including
the grant of partial summary judgment. See OCGA § 9-11-56 (h).
In order to appeal the grant of summary judgment, Harmon was required to file
her notice of appeal within 30 days of the summary judgment ruling. See OCGA §
5-6-38 (a). Because Harmon did not file her notice of appeal within 30 days of the
trial court’s grant of summary judgment, that ruling cannot confer appellate
jurisdiction upon us.
Harmon filed a notice of appeal within 30 days of the October 20, 2021 order
denying her motion to vacate the summary judgment ruling. She suggests that we
have appellate jurisdiction because the October 20, 2021 order was also a summary
judgment ruling. “[U]nder Georgia law, we construe orders according to their
substance and function and not merely by nomenclature.” Epstiner v. Spears, 340 Ga.
App. 199, 202 (1) (796 SE2d 919) (2017) (citation and punctuation omitted). Here,
the trial court’s order did not pertain to the merits of the case and thus cannot
reasonably be construed as the grant of summary judgment. See Forest City Gun Club
v. Chatham County, 280 Ga. App. 219, 221 (633 SE2d 623) (2006).
Because Harmon’s claim against the allegedly negligent driver remains
pending below, Harmon was required to comply with the interlocutory appeal
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procedures in order to appeal the trial court’s order denying her motion to vacate the
grant of summary judgment. See OCGA § 5-6-34 (b) (“Where the trial judge in
rendering an order . . . not otherwise subject to direct appeal, . . . certifies within ten
days of entry thereof that the order . . . is of such importance to the case that
immediate review should be had, the Supreme Court or the Court of Appeals may .
. . permit an appeal to be taken from the order . . . if application is made thereto within
ten days after such certificate is granted.”); Forest City Gun Club, 280 Ga. App. 219,
221-222 (appeal of pre-trial ruling required compliance with interlocutory appeal
procedures). Harmon’s failure to comply with the interlocutory appeal procedures
deprives us of jurisdiction over this appeal. Accordingly, Progressive’s motion to
dismiss is hereby granted, and this appeal is dismissed.
Appeal dismissed. Division Per Curiam. All Judges concur.
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