Standard Guaranty Insurance v. Bundrage

Hunstein, Justice.

We granted certiorari in this case, as respondent Roosevelt Bundrage stated in his brief before us, “to consider the effect of assignments of benefits in both tort and insurance cases.” We have recently addressed these same issues in Allianz Life Ins. Co. v. Riedl, 264 Ga. 395 (444 SE2d 736) (1994), in which a majority of this Court rejected all of the arguments Bundrage raised regarding the effect of such assignments. Bundrage now asserts that the documents he executed were not assignments but instead were powers of attorney. However, a review of the record reveals that Bundrage did not deny the documents were assignments when that assertion was made by Standard Guaranty pursuant to USCR 6.5, and that on appeal from the trial court’s order, which included the finding that Bundrage “assigned his right to collect benefits to his medical providers,” Bundrage neither enumerated as error nor challenged in his Court of Appeals brief the trial court’s finding in this regard.

Having conceded throughout the entire course of this litigation that the documents he executed were assignments, Bundrage cannot raise the argument for the first time in this Court or enlarge his enumerations to cover an issue not heretofore enumerated. See generally Sumner v. First Union Nat. Bank, 200 Ga. App. 729 (3) (409 SE2d 212) (1991); Howard v. DeKalb County Jail Staff, 205 Ga. App. 116 (1) (421 SE2d 309) (1992). Accord Irvin v. Askew, 241 Ga. 565 (2) (246 SE2d 682) (1978).

Division 2 of Bundrage v. Standard Guar. Ins. Co., 211 Ga. App. 288 (439 SE2d 92) (1993) is contrary to Allianz Life Ins. Co. v. Riedl, supra, and is hereby reversed.

Judgment reversed.

All the Justices concur, except Sears and Carley, JJ., who dissent.