Browning v. Rabun County Board of Commissioners. , 347 Ga. App. 719 ( 2018 )

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and REESE, 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.
http://www.gaappeals.us/rules
October 23, 2018
In the Court of Appeals of Georgia
A18A0906. BROWNING v. RABUN COUNTY BOARD OF
COMMISSIONERS.
REESE, Judge.
In the second appearance of this case before this Court, Jean Browning appeals
the grant of summary judgment on the basis of sovereign immunity to the Rabun
County Board of Commissioners (“the Appellee”) in the Appellant’s breach of
contract suit.1 The suit asserted that the Appellee had failed to pay life insurance
benefits to which she was entitled after the death of her husband, Timothy Browning
(“Mr. Browning”). Specifically, the Appellant contends that a written contract existed
1
See Court of Appeals Order, Case No. A17A1136, dated April 14, 2017. We
remanded this matter for the trial court to issue an order “confirming which of the
exhibits identified by [the Appellant], if any, it considered in deciding this case and
supplementing the record accordingly.”
between Mr. Browning and the Appellee for voluntary life insurance in the amount
of $50,000. For the reasons set forth infra, we affirm.
Viewed in the light most favorable to the Appellant as the non-moving party,2
the evidence shows that Mr. Browning was employed by the Appellee from 1998
until his death on September 25, 2012. The Appellee provided Mr. Browning with a
$25,000 life insurance policy and an additional $25,000 in benefits in the event of his
accidental death (“standard policy”), all at no cost to him as a standard benefit. The
Appellee also offered its employees the opportunity to purchase optional life
insurance for up to $50,000 (“optional policy”). Shortly after Mr. Browning’s death,
the Appellant received $50,000 plus interest, in life insurance benefits based on the
standard policy.3 However, the Appellee denied the Appellant’s request for payment
based on the optional policy because the Appellee did not possess a completed
enrollment form signed by Mr. Browning that elected such coverage under the
Appellee’s current insurer, Sun Life Assurance Company of Canada (“Sun Life”).
The Appellee sent the Appellant a check in the amount of $2,605.06, for the Sun Life
2
See Drumm v. George, 345 Ga. App. 760, 761 (814 SE2d 575) (2018).
3
The Appellant also received $75,000 from a non-employment based
supplemental life insurance policy which is not part of this appeal.
2
optional policy premiums mistakenly deducted plus interest of 3%, which was refused
by the Appellant.
The Appellant filed a verified complaint alleging negligence4 and breach of
contract and seeking attorney fees based on the Appellee’s failure to procure
insurance and pay benefits based on the optional policy.5 The Appellee subsequently
moved for summary judgment, arguing, inter alia, that it was entitled to sovereign
immunity because there was no written contract between Mr. Browning and the
Appellee for the life insurance benefits based on the optional policy.
In support of its motion for summary judgment, the Appellee filed with the trial
court a notarized “Certificate of Absence of Record” executed by the Appellee’s
Clerk, stating under oath that the regular practice of the Clerk’s Office was to
“maintain the originals of all group life insurance enrollment forms completed and
signed by Rabun County employees for life insurance policies that [were] currently
in effect.” Further, the Clerk stated that her office had conducted a diligent search for
“any Sun Life enrollment form signed by [Mr.] Browning in which he enrolled in Sun
4
The Appellant subsequently withdrew her negligence claim. See footnote 6,
infra.
5
The Appellant later filed an amended complaint adding the Appellee’s
insurance broker, but she subsequently dismissed the broker from the lawsuit.
3
Life’s voluntary additional coverage[, but the search] failed to disclose any such
enrollment form.”
The Appellee also filed two affidavits of Debra Jacobs, its Clerk and Chief
Financial Officer. Jacobs averred that, on November 1, 2002, the Appellee changed
the carrier for its optional policy from United of Omaha to Sun Life. Further, after the
change, “[the Appellee] and Sun Life provided open enrollment to all Rabun County
employees for coverage under the new [optional] policy[,]” and cancelled the
previous optional policy with United of Omaha. Jacobs further testified that,
“[a]ccording to Rabun County records, [Mr.] Browning did not sign before his death
an enrollment form requesting optional life insurance coverage with Sun Life or any
other carrier [the Appellee] ha[d] engaged since 2002 to provide group life insurance
coverage to [its] employees.” The Appellee mistakenly withheld insurance premium
payments of $13.41 from each of Mr. Browning’s paychecks for the Sun Life optional
policy coverage from November 1, 2002, through September 2012. Jacobs explained
that the mistake was a clerical error and that the clerk responsible for the error had
been fired.
After a hearing, the trial court granted the Appellee’s motion for summary
judgment as to the breach of contract claim, ruling that the claim was barred by
4
sovereign immunity. It also noted in its order that the Appellant had withdrawn her
negligence claim prior to the trial court’s ruling.6 This appeal followed.
On appeal from the denial or grant of summary judgment, the appellate
court conducts a de novo review of the evidence to determine whether
there is a genuine issue of material fact and whether the undisputed
facts, viewed in the light most favorable to the nonmoving party,
warrant judgment as a matter of law.7
With these guiding principles in mind, we turn now to the Appellant’s specific claims
of error.
The Appellant argues that the trial court erred in granting the Appellee’s
motion for summary judgment under the doctrine of sovereign immunity.
Specifically, the Appellant contends the Appellee waived its sovereign immunity by
withholding insurance premiums from Mr. Browning’s paycheck, thus
6
Although the appellate record does not contain an order allowing the
Appellant to withdraw her negligence claim, the Appellant did not challenge the trial
court’s finding that she had withdrawn the claim in her enumerations of error on
appeal and, therefore, there is nothing for this Court to review as to that claim. See
Court of Appeals Rule 25 (a) (2); see also Cobble v. State, 268 Ga. App. 792, 794 (2)
(603 SE2d 86) (2004) (“Both this Court and the Supreme Court of Georgia have made
it clear that . . . arguments raised in the appellate brief are not made issues on appeal
unless they are properly enumerated as error.”) (punctuation and footnote omitted).
7
Drumm, 345 Ga. App. at 761 (citation and punctuation omitted).
5
acknowledging he had a valid contract with the Appellee for life insurance benefits
under the optional policy at the time of his death. We disagree.
“To constitute a valid contract, there must be parties able to contract, a
consideration moving to the contract, the assent of the parties to the terms of the
contract, and a subject matter upon which the contract can operate.”8 “A contract is
not complete and enforceable until there is a meeting of the minds as to all essential
terms.”9
The doctrine of sovereign immunity “protects all levels of governments from
legal action unless they have waived their immunity from suit.”10 “In order to avoid
the bar of sovereign immunity and maintain an action against a county for breach of
contract, a plaintiff must show that the contract sought to be enforced is in writing.”11
8
OCGA § 13-3-1.
9
Ga. Dept. of Community Health v. Data Inquiry, LLC, 313 Ga. App. 683, 685-
686 (1) (a) (722 SE2d 403) (2012) (citation and punctuation omitted).
10
Drumm, 345 Ga. App. at 762 (citation and punctuation omitted); see also Ga.
Const. of 1983, Art. IX, Sec. II, Par. IX (“The General Assembly may waive the
immunity of counties, municipalities, and school districts by law.”); Gilbert v.
Richardson, 264 Ga. 744, 747 (2) (452 SE2d 476) (1994) (Counties of the State of
Georgia are included in the reservation of sovereign immunity.).
11
Merk v. DeKalb County, 226 Ga. App. 191 (486 SE2d 66) (1997) (citing Ga.
Const. of 1983, Art. I, Sec. II, Par. IX); see also Layer v. Barrow County, 297 Ga. 8716
“An implied contract will not support a waiver of immunity under the provisions of
the Georgia Constitution.”12 Further,
[g]eneral rules of contract law that might otherwise support a claim for
breach of contract damages between private parties. . . will not support
a claim against the state or one of its agencies if the contract is not in
writing so as to trigger the waiver of sovereign immunity.13
In the instant action, the trial court stated in its order granting the Appellee’s
motion for summary judgment, that “[n]o written contract between Mr. Browning and
[the Appellee] exist[ed] in which the [Appellee] agreed to provide voluntary life
insurance coverage to him. [The Appellant] cannot produce such an agreement. [The
Appellee] did its due diligence and cannot produce such an agreement either.”
The Appellant’s assertion that multiple signed, contemporary agreements
involving the same parties is evidence of the existence of the required written
contract14 is unavailing, as the evidence in this case was insufficient to show a written
(1) (778 SE2d 156) (2015) (“As a general rule, counties enjoy sovereign immunity.”).
12
Drumm, 345 Ga. App. at 762 (citation and punctuation omitted).
13
Ga. Dept. of Labor v. RTT Assoc., 299 Ga. 78, 82 (2) (786 SE2d 840) (2016)
(citation omitted).
14
See Ga. Dept. of Community Health, 313 Ga. App. at 686 (1) (b) (A court
may find that a written contract was formed “when there are multiple signed,
7
contract formed from multiple documents.15 Even if that principle applied here, the
documents in the record do not meet the standard for constituting a written contract.16
The record contains a copy of Mr. Browning’s completed enrollment form for
the standard policy for the 2010-2011 fiscal year and a summary of benefits elected
by Mr. Browning for 2012 that purports to show Mr. Browning was enrolled in the
optional policy at that time. The summary of benefits is not a written contract
between the Appellee and Mr. Browning however, because it is not signed by either
party and does not show the assent of the parties to the contract or contain any terms
other than the monthly premium.17 Further, despite the Appellant’s assertion to the
contrary, the erroneous payroll deductions for the optional policy premiums did not
contemporaneous agreements between the parties which demonstrate their intent to
enter into a binding contract and the individual documents, considered together,
include all of the necessary terms of a contract.”) (citation omitted).
15
RTT Assoc., 299 Ga. at 86 (2) (“[T]he application of general provisions of
contract law cannot be applied by the courts to create a waiver of sovereign immunity
by means other than by written contract.”) (punctuation omitted).
16
See Ga. Dept. of Community Health, 313 Ga. App. at 686 (1) (a).
17
See OCGA § 13-3-1; see Drumm, 345 Ga. App. at 763.
8
create a written contract, i.e., a contract by estoppel, because estoppel is not
recognized as a cause of action under Georgia law.18
Thus, the record does not contain a completed enrollment form signed by Mr.
Browning for the election of coverage under the optional policy provided by Sun
Life, the Appellee’s current insurance carrier. Based on the foregoing, the trial court
did not err in granting summary judgment in favor of the Appellee.
Judgment affirmed. Barnes, P. J., and McMillian, J., concur.
18
See Wilson v. Keheley & Co., 177 Ga. App. 769, 770 (2) (341 SE2d 245)
(1986) (Affirmed the trial court’s judgment that a contract for the payment of life
insurance benefits was not created when an employer made erroneous payroll
deductions for life insurance premiums from an employee who declined to enroll in
the life insurance plan.).
9