Seaton v. Aetna Casualty & Surety Co. , 189 Ga. App. 546 ( 1988 )

Banke, Presiding Judge.

The appellant sued the appellee insurer to recover no-fault benefits allegedly due her under a policy of motor vehicle accident insurance issued to a third party by the appellee. See generally OCGA § 33-34-1 et seq. In addition, she sought to recover a bad-faith penalty, punitive damages and attorney fees pursuant to OCGA § 33-34-6.

Prior to trial, the appellee sought a protective order relieving it of any obligation to produce certain discovery materials sought by the appellant. These materials evidently related to a personal injury action the appellant had filed seeking to recover damages from the driver of the insured vehicle based on the same injuries for which she sought no-fault benefits in the present case. According to the appellant, these discovery materials were relevant to her claim for a bad-faith penalty, punitive damages and attorney fees in the present case in that they would have established how long the appellee had been in possession of evidence supporting her claim for no-fault benefits.

On April 8, 1986, the trial court entered an order granting the appellee’s request for a protective order with respect to any “communications between the [appellee] and its counsel or work product of [appellee’s] attorney.” On June 10, 1986, the trial court entered a related order directing the appellee to deliver to the court for in-camera inspection all materials which it continued to withhold from the appellant on the basis of the attorney-client or work product privilege. On November 11, 1986, the court entered a third order stating that it had completed its in-camera inspection of the materials in question and had determined that, with the exception of one document which had already been served on the appellant as an attachment to a summary judgment motion, all of the materials were privileged and were not required to be produced.

The case ultimately proceeded to trial and to a resulting verdict in favor of the appellee. Judgment was entered on the verdict on November 23, 1987. On December 21, 1987, the appellant filed a notice of appeal which specified, in pertinent part, as follows: “Notice is hereby given that the plaintiff hereby appeals to the Court of Appeals from the orders of the trial court entered in the case on 4/8/86, 6/10/ 86, and 11/10/86. Final judgment was entered in the case on 11/23/ 87. ” The appellee has moved this court to dismiss the appeal on the grounds that the rulings appealed from were interlocutory in nature and were rendered moot by the subsequent verdict and judgment in its favor. Held:

1. The motion to dismiss is denied. OCGA § 5-6-48 (b) specifies three grounds upon which an appellate court may dismiss an appeal, as follows: “(1) For failure to file notice of appeal within the time required as provided in this article or within any extension of time granted hereunder; (2) Where the decision or judgment is not then appealable; or (3) Where the questions presented have become moot.” The asserted defect in the notice of appeal in this case does not cause the appeal to fall into any of these categories. Moreover, dismissal of the appeal would contravene both the letter and the spirit of OCGA § 5-6-48 (f), which provides as follows: “Where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from or that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed.” Accord Sanders v. Looney, 247 Ga. 379 (1) (276 SE2d 569) (1981); Brackett v. Allison, 119 Ga. App. 632 (1) (168 SE2d 611) (1969); Horton v. Allstate Ins. Co., 171 Ga. App. 707 (1) (320 SE2d 761) (1984).

The appellee’s reliance on Martin v. Farrington, 179 Ga. App. 227 (346 SE2d 5) (1986), as authority for a contrary conclusion is misplaced. There, we held that “[wjhere the notice of appeal specifies that the appeal is taken from an order which is not appealable and where the appeal is in fact taken from such an order, the appeal is subject to dismissal.” Id. (Emphasis supplied.) It is readily apparent that although the appeal in the present case was directed to the interlocutory orders entered in 1986, it was in fact taken from the final judgment entered on November 23, 1987, for that is the only reasonable explanation both for the appellant’s having waited until December 21, 1987, to file the appeal and for the inclusion of the statement in her notice of appeal that “the final judgment had been entered on November 23, 1987.” To take what is at most a technical inartfulness in the wording of the notice of appeal and to treat it as a jurisdictional defect requiring dismissal would be wholly incompatible with the letter and spirit of the Appellate Practice Act. Accord Steele v. Cincinnati Ins. Co., 252 Ga. 58 (311 SE2d 470) (1984).

We must also reject the appellee’s contention that the present appeal is subject to dismissal for mootness. The test of mootness is whether the appellant, in case of a reversal, could claim or enforce the rights insisted upon. Haley v. Bailey, 199 Ga. 486, 488 (34 SE2d 685) (1945). If the judgment in the present case were reversed on the ground that the appellant was improperly denied access to relevant discovery materials, then the appellant would be in a position to insist on those materials prior to the re-trial of the case. Therefore, the issues raised by the appeal are not moot.

2. The court’s refusal to grant access to the requested materials was, however, harmless under the circumstances of the present case. The appellant does not contend that the materials would have provided additional support for her claim for no-fault benefits. Rather, she contends that they would have supported her claim for a bad-faith penalty, attorney fees, and punitive damages by showing at what point the appellee was in possession of reasonable proof establishing her entitlement to no-fault benefits. However, the jury determined, that the appellee was not entitled to any no-fault benefits whatever. Since an insurer clearly cannot incur additional liability under OCGA § 33-34-6 for refusing to pay no-fault benefits which it does not in fact owe, it follows that if the court erred in granting the motion for protective order, that error could not have contributed to the jury’s verdict.

Judgment affirmed.

Deen, P. J., Carley and Benham, JJ., concur. Beasley, J., concurs specially. Birdsong, C. J., McMurray, P. J., Sognier and Pope, JJ., dissent.