Jim Walter Homes, Inc. v. Roberts., 196 Ga. App. 618, 396 S.E.2d 787 (1990)
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Summary
Judgment affirmed. Banke, P. J., and Birdsong, J., concur.
Summary
Judgment affirmed. Banke, P. J., and Birdsong, J., concur.
Text
Wilson, Strickland & Benson, Warner R. Wilson, Jr., Earl B. Benson, Jr., Anne E. Ware, for appellant.
On June 24, 1986, appellee was injured while in the course of her employment with appellant; subsequently, appellant, through its insurer, commenced payment of workers compensation benefits to appellee. In October 1986, appellee, who had ceased her employment relationship with appellant and moved to Florida, sought additional medical treatment, which appellant refused to authorize, forcing appellee to return to Georgia to obtain "authorized" medical treatment. On February 10, 1989, appellee filed an action, which was a renewal of a previous action, against a hospital, two of her treating physicians, appellant and appellant's insurance carrier. In Counts I, II, and III of the complaint, appellee alleged malpractice on the part of the hospital and physicians; in Count IV, appellee alleged that appellant's insurer failed to authorize treatment when she was in need of surgery; and in Count V, appellee alleged that appellant and its insurer failed to authorize payment for necessary medical treatment, conspired to deprive appellee of adequate medical care, attempted to dissuade appellee from ascertaining the truth about the extent of her injuries, and wilfully deprived her of adequate medical care, which actions resulted in her total disability. Appellee prayed for damages against appellant in the amount of one million dollars in general and special damages and one million dollars in punitive damages. Appellant failed to answer the complaint and a default judgment was entered against appellant on all issues except damages. On July 18, 1989, following a trial on the issue of damages, the court entered a judgment against appellant for 1.5 million dollars in general damages and $500,000 in punitive damages; the trial court entered findings of fact and conclusions of law, finding that appellant had participated in a scheme which served to deprive appellee of proper and adequate medical care and treatment, that as a result of this lack of adequate and timely medical care, appellee is suffering and will suffer total physical disability for the remainder of her life, and that the acts of appellant constituted wilful and wanton acts rising to the level of outrageous conduct. Appellant, unaware that a money judgment had been entered filed a motion to open default and vacate judgment but after discovering that a money judgment had been entered, filed a motion to set aside the judgment. On October 31, 1989, the trial court entered an order denying appellant's motions to open default and set aside judgment, amended its July 18, 1989 order by reducing the amount of general damages to one million dollars, and entered a supplemental judgment to reflect the amended damages. On November 17, 1989, appellant filed a notice of appeal which specifically stated that the appeal was from the order denying appellant's motion to set aside default judgment. However, on December 14, 1989, appellant filed an amended notice of appeal stating that in its original notice of appeal it inadvertently specified that the appeal was from the order denying its motion to set aside rather than that portion of the order which it
intended to appeal -- the entry of final judgment against appellant in the amount of 1.5 million dollars.
1. Appellee has moved to dismiss the appeal on the grounds that appellant is appealing from the denial of its motion to set aside and has not complied with the discretionary appeal provisions of OCGA
2. In appellant's first enumeration of error, it contends that the court lacked subject matter jurisdiction because the underlying issue is a workers' compensation matter. "Due to [its] default, [appellant] is in a position of having admitted each and every material allegation of [appellee's] complaint except as to the amount of damages suffered by [appellee]." Whitby v. Maloy,
"It is unfortunate that the insurance company made the patient see another doctor after Dr. Lerner become [sic.] involved, because I feel that he would have continued to persue [sic.] the lumbar radiculopathy and would have performed definitive surgery on this lady. It is unfortunate that the new physician . . . was sort of thrown into the case because many times when the insurance company does this with a person of psychological imbalance; and indeed I believe that Dr. Lerner referred to a psychiatrist -- all in the face of severe neurological deficits which should have been operated on at that time, and therefore, it is my opinion that Dr. Lerner -- unfortunately caught in the web of insurance company demands and soforth [sic.], as already described above -- did not adhere to the normal standards of care . . . and his failure to perform definitive surgery was the proximate cause of the injury." Thus, the injury appellee alleges is an intentional physical injury resulting from appellant's refusal to authorize necessary treatment, rather than an intentional financial injury resulting from a delay in paying workers' compensation benefits. Compare Bright v. Nimmo,
3. In its second enumeration appellant contends that the final judgment is erroneous because it violates the exclusive remedy provision of the Georgia Workers' Compensation Act. For the reasons discussed in Division 2 we find this enumeration of error to be without merit.
4. Appellant contends that the trial court erred in finding that it had no power to open the default. It appears from the record that the trial court concluded that the July 18, 1989, order was a final judgment which precluded the court from opening the default under OCGA
5. Appellant's contention that the failure to give it notice of the trial on the damages issue constituted a denial of due process is with-out merit. OCGA
Bobby H. Barton, Kenneth R. Chance, for appellee.
1990
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