WHOLE COURT
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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
March 29, 2013
In the Court of Appeals of Georgia A12A1667. GARCIA v. SHAW INDUSTRIES, INC.
B RANCH, Judge.
Karina Garcia appeals from the trial court’s grant of summary judgment to her
former employer, Shaw Industries, Inc. She contends the trial court erred in granting
summary judgment because genuine issues of material fact remain as to her claim for
intentional infliction of emotional distress, and she argues that her defamation claim
is not barred by the statute of limitation. For the reasons the follow, we affirm.
On appeal from a grant of summary judgment, this Court reviews the evidence
de novo, viewing it in the light most favorable to the nonmoving party, to discern
whether a genuine issue of material fact remains or whether the moving party is
entitled to judgment as a matter of law. Smith v. Lott, 317 Ga. App. 37, 37 (730 SE2d
663) (2012).
Garcia is not a United States citizen, but she entered the country legally with
a border-crossing card. She was not authorized to work in the United States, but she obtained employment at a company called Modern Fibers using the name, Social
Security number, and other personal information of Cristal Sanchez, a United States
citizen whose identity Garcia paid $400 to use. When Shaw purchased M odern Fibers,
Garcia reapplied for her job, again under the Sanchez name. She consistently indicated
on all applicable employment forms that her name was Sanchez. 1
In March 2007, Garcia slipped and fell at work, injuring her back and knees.
After treatment, she returned to light-duty work with some restrictions, and Shaw’s
third-party administrator, Gallagher Bassett, filed an initial claim with the Georgia
State Board of Workers’ Compensation (the “Board”). Garcia later retained a lawyer
because she thought she had to wait too long for doctor’s appointments, and this
attorney on July 26, 2007, filed a Form WC-14 notice of claim with the Board and
copied Shaw and Gallagher Bassett at that time; that form gives Garcia’s first name
as “Karina” and her last name as “Garcia aka Cristal Sanchez.” The Board then
opened a separate claim file.
1 But Garcia deposed that the Shaw employee who helped her fill out the application told her to apply using the Sanchez name, rather than her real name.
2 Garcia became eligible for Temporary Partial Disability (“TPD”) benefits
because she was earning less at her light-duty job, and Gallagher Bassett began paying
those benefits in checks made out to “Cristal Sanchez.”
In December 2007, without challenging Garcia’s back injury, Shaw requested
a hearing regarding benefits for Garcia’s other injuries, and Shaw hired attorney
Robert Ryan to handle that dispute. Ryan saw that on a WC-14 notice of claim 2 Garcia
gave her name as “Karen Garcia a/k/a Cristal Sanchez” and that she had requested that
she be assigned a Social Security number; he therefore served discovery on her asking
if she was a United States citizen and if she was authorized to work in the United
States. Garcia refused to respond and invoked the Fifth Amendment. Ryan arranged
a follow-up deposition, which was held on February 26, 2008, at which Garcia
revealed that the name and Social Security number she provided to Shaw were not
hers; she refused to provide additional clarification.
Consequently, on March 5, 2008, Shaw discharged Garcia, following which
Ryan told Garcia’s attorney that Shaw would continue to provide medical benefits and
TPD income benefits, but would not provide Temporary Total Disability (“TTD”)
2 Garcia filed multiple WC-14 forms, and it is unclear to which one Ryan was referring.
3 income benefits, because Shaw believed that Garcia’s inability to work was due to her
immigration status rather than to her injury. Garcia later admitted that after her
discharge, she continued to tell potential employers that she was authorized to work
in the United States despite the fact that she had never been authorized to do so and
that her authority to be in the United States had expired. Garcia also admitted that
after her termination she continued to identify herself under the assumed identity
when applying for jobs.
In December 2008, Ryan heard the Director of the Enforcement Division of the
Workers’ Compensation Board speak at a seminar about the issue of the use of false
identity by illegal aliens, following which Ryan spoke to Shaw about Garcia’s case.
In March 2009, one year after discharging Garcia, Shaw filed a complaint with the
fraud and compliance unit of the Board. See OCGA § 34-9-24 (establishing the fraud
and compliance unit). The complaint states that “this is a case of suspected identity
theft and a case of suspected misrepresentation” and that Garcia had “willfully made
false and misleading representation[s] for the purpose of obtaining workers’
compensation benefits.” Shaw “respectfully request[ed] that the Board review this
matter to determine if the Claimant has committed workers’ compensation fraud.” The
complaint stated the history of Garcia’s employment as Cristal Sanchez and how Shaw
4 was paying her workers’ compensation benefits under that name. The complaint also
mentioned a WC-14 dated December 20, 2007 and highlighted how the plaintiff gave
her name as “Karina Garcia a/k/a Cristal Sanchez” on that form. At her deposition in
this lawsuit Garcia admitted that all the factual assertions in the complaint that Shaw
filed were true.
At some point, Shaw, on request from the Board’s fraud unit, provided the
division with a copy of Garcia’s file. And approximately one year after Ryan filed the
complaint for Shaw, someone from the Board’s fraud unit contacted Ryan to say that
she had warrants for Garcia’s arrest. She asked Ryan if there were any upcoming
hearings or depositions so that they could locate Garcia, and Ryan told her about the
upcoming April 8, 2010, deposition. Garcia was arrested on warrants signed by a
magistrate judge for forgery and possession of a fraudulent document on April 8,
2010, as she was leaving her attorney’s office after the deposition. On September 9,
2010, Garcia filed the action that led to this appeal.
1. Garcia contends the trial court erred in granting summary judgment to Shaw
as to Garcia’s claim for intentional infliction of emotional distress. Specifically, she
argues that there is evidence from which a reasonable person could find that Shaw set
her up for arrest causing her severe emotional distress sufficient to create a claim of
5 intentional infliction of emotional distress. Although we do not condone Shaw’s
conduct, we conclude that it does not rise to the level of extreme and outrageous
conduct necessary to sustain a claim of intentional infliction of emotional distress.
(a) We first address Shaw’s contention that its actions in filing the fraud
complaint were protected from liability under OCGA § 34-9-24, a provision of the
Workers’ Compensation Act that provides a safe harbor for persons who “[i]n the
absence of fraud or malice” furnish the Board with information regarding suspected
fraud:
In the absence of fraud or malice, no person or entity who furnishes to the board information relevant and material to suspected fraud under or noncompliance with the workers’ compensation laws of this state shall be liable for damages in a civil action or subject to criminal prosecution for the furnishing of such information.
OCGA § 34-9-24 (d).
Here, Garcia admits that the allegations contained in Shaw’s complaint are true,
and therefore it is undisputed that Shaw did not commit fraud when it filed its
complaint. And both Ryan, the attorney Shaw hired in connection with Garcia’s
workers’ compensation issues, and Melinda Majors, the workers’ compensation
analyst in Shaw’s Risk Management department, testified that they were not motivated
6 to file the complaint by malice or ill-will against Garcia. Rather, although Shaw made
clear that it would continue to provide medical benefits and TPD income benefits to
Garcia, it was concerned about Garcia’s future eligibility for TTD income benefits
because Shaw believed that her inability to work was due to her immigration status
rather than to her injury. When “sworn testimony evidences [a party’s] good faith in
filing [a] complaint” the opposing party “cannot rest upon his allegations or denials
but is cast with the burden of showing there was a genuine issue for trial.” (Citation
and punctuation omitted.) Farrar v. Macie, 297 Ga. App. 192, 195 (3) (676 SE2d 840)
(2009). Garcia has offered little more than rhetoric in her attempt to carry that burden.
Garcia describes her case of intentional infliction of emotional distress as being
based on the following assertions: that Shaw knew well before it filed the complaint
that Garcia was operating under an assumed identity; that Shaw continued to pay
Garcia workers’ compensation benefits payments under the Sanchez name, anyway;
that Shaw filed the complaint days after Garcia found out she might need back
surgery; that Shaw failed to disclose to the Board that it possessed a copy of the
earliest WC-14 showing Garcia had an alias; that Shaw’s attorney lured her into a
deposition so that she could be arrested, and perhaps, deported; and that the arrest was
“set up” at Shaw’s request.
7 First, even if it is true that Shaw knew that Garcia had an alias and that Shaw
was paying Garcia under the wrong name, it is not malice for Shaw to want to bring
Garcia’s possible illegal behavior to an end. Second, Garcia offers no evidence to
show that Shaw knew at the time it filed the complaint that Garcia’s medical condition
had worsened. Third, the fact that Shaw’s counsel may have told the investigator from
the workers’ compensation fraud unit where Garcia could be found in order that she
be arrested is not evidence of malice. The investigator could have found Garcia’s
whereabouts in many other ways. Assisting law enforcement by providing readily
available information does not amount to malice. And finally, Garcia’s rhetoric that
Shaw “set up” her arrest is belied by the fact that the arrest was the result of a truthful
complaint, an investigation by the fraud unit, and a warrant authorized by a magistrate
court judge. Not even the dissent disputes that the charges against Garcia were
authorized based on her conduct. Thus, we are tempted to conclude that Garcia failed
to carry her burden of showing that there was a genuine issue for trial regarding
Shaw’s alleged malice.
8 (b) But pretermitting whether Shaw could be protected from liability by OCGA
§ 34-9-24 or other immunity law,3 a claim of intentional infliction of emotional
distress requires a showing of “extreme and outrageous conduct,” 4 which means much
more than malice:
It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.
3 OCGA § 51-5-7 provides in part, “The following communications are deemed privileged: (1) Statements made in good faith in the performance of a public duty; (2) Statements made in good faith in the performance of a legal or moral private duty; (3) Statements made with a good faith intent on the part of the speaker to protect his or her interest in a matter in which it is concerned; (4) Statements made in good faith as part of an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern, as defined in subsection (c) of Code Section 9-11-11.1; . . .” 4 “The elements of a cause of action for intentional infliction of emotional distress are: (1) intentional or reckless conduct; (2) that is extreme and outrageous; (3) a causal connection between the wrongful conduct and the emotional distress; and (4) severe emotional distress.” Ferrell v. Mikula, 295 Ga. App. 326, 333 (3) (672 SE2d 7) (2008).
9 (Emphasis supplied, punctuation omitted.) Bowers v. Estep, 204 Ga. App. 615, 618
(2) (420 SE2d 336) (1992), citing Restatement (Second) of Torts, § 46, comment d.
In this case, as a matter of law Shaw’s actions do not amount to extreme and
outrageous conduct.
“Whether a claim rises to the requisite level of outrageousness and
egregiousness to sustain a claim for intentional infliction of emotional distress is a
question of law.” (Citation and punctuation omitted.) Frank v. Fleet Finance, Inc. of
Ga., 238 Ga. App. 316, 318 (518 SE2d 717) (1999). See also Racette v. Bank of
America, N.A., 318 Ga. App. 171, 179 (3) (733 SE2d 457) (2012) (same).
When Shaw filed an administrative fraud complaint with the Georgia State
Board of Workers’ Compensation, it truthfully and accurately related the facts, as
Garcia has admitted. Garcia had been discharged from Shaw a year earlier, and there
is no evidence that Shaw had any continuing contact with Garcia or any animus or ill-
will. Instead, Shaw had reason to believe that Garcia was falsifying her identity and
lying about her authorization to work in the United States. Shaw may have also
desired to shed a light on Garcia’s fraudulent behavior in the hopes that it might affect
its liability for continuing workers’ compensation benefits, but the fact remains that
when it made its report to the Board, Shaw had a well-formed basis to believe that
10 Garcia was engaging in illegal conduct. In light of its fully accurate report of Garcia’s
misconduct, Shaw’s decision to report a suspected crime, even if motivated by a desire
to limit its future workers’ compensation exposure, cannot be said to be “so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.”
The case of Fleming v. U-Haul Co. of Georgia, 246 Ga. App. 681 (541 SE2d
75) (2000), is distinguishable because in that case the plaintiff presented some
evidence that the defendant lacked a good faith basis for swearing out an arrest
warrant. In Fleming, the plaintiff made two telephone calls to U-Haul report that his
rented truck had broken down on Interstate 20 and to give his name, location, and the
contract number. Id. Despite being told in each call that someone was coming to
assist, no one showed up for one hour and forty minutes, whereupon the plaintiff left
the keys in the truck (not in the ignition), hitchhiked home, and had no further contact
with U-Haul. Id. Sometime thereafter, U-Haul swore out a warrant for the plaintiff’s
arrest, and the plaintiff was eventually arrested and spent eight days in jail. Id. at 682.
The plaintiff was indicted for theft by conversion, but U-Haul later dismissed the
11 charge because the truck had been recovered and U-Haul did not wish to pursue the
case. Id.
This court held that the dismissal of the case was some evidence that probable
cause was lacking; that the jury would be authorized to find that U-Haul “negligently
failed to ascertain the complete state of facts or recklessly failed to present them fully
and fairly to the magistrate who issued the arrest warrant”; and that a jury could
conclude that U-Haul “wantonly disregarded [the plaintiff’s] rights in swearing out
an arrest warrant . . . [after the plaintiff] informed U-Haul’s agents [the truck] was
stalled, after the twice-promised roadside assistance never materialized.” Id. at 683-
684. Here, it is undisputed that Shaw provided fully accurate information in the
complaint and there is no suggestion that probable cause for Garcia’s arrest was
lacking.
For the reasons discussed in Division (1) (b), a rational jury could not
reasonably conclude that Shaw acted in an extreme and outrageous manner when it
filed a complaint with the Board that led a government agency to investigate and,
eventually, arrest Garcia. Accordingly Garcia’s claim of intentional infliction of
emotional distress must fail.
12 2. Garcia next argues that the trial court erred in granting summary judgment
to Shaw on its allegation that her defamation claim was barred by a one-year statute
of limitation.
Shaw filed the fraud complaint with the Board on March 19, 2009. On
September 9, 2010, Garcia filed her defamation claim alleging that Shaw wrongfully
accused her of “forgery” and “stated this to multiple other people in order to provoke
these criminal charges.” Garcia’s complaint was filed about 18 months after Shaw’s
complaint to the Board. OCGA § 9-3-33 provides that actions for “injuries to the
reputation . . . shall be brought within one year after the right of action accrues.”
Statute of limitation is an affirmative defense pursuant to OCGA § 9-11-8 (c).
Thus, Shaw bore the burden on summary judgment to come forward with evidence
demonstrating as a matter of law that Garcia’s alleged defamation occurred more than
a year prior to the filing of her defamation action.5 Once Shaw did this, by pointing
to the 18-month time lapse between the filing of its fraud complaint with the Board
and Garcia’s filing of her defamation action, and by pointing to an absence of
evidence of other defamatory acts, the burden shifted to Garcia either to show that her
5 Realty World-Druid Realty, Inc. v. Hooper Properties, Inc., 191 Ga. App. 773, 774 (1) (b) (383 SE2d 164) (1989).
13 case fell under the continuing tort doctrine, or that the statute of limitation was tolled.6
This she has failed to do.
Garcia first argues that the statute of limitation had not run because she was not
“fully harmed” until she was arrested on April 8, 2010, and that neither she nor her
Workers’ Compensation attorney knew about the fraud complaint until after that
arrest. This argument is unavailing. It is well-established that “[a]ctions for injury to
the reputation . . . must be brought within one year from the date of the alleged
defamatory acts regardless of whether or not plaintiff had knowledge of the act or acts
at the time of their occurrence.” 7
Garcia also alleges that there is evidence that Shaw and its agents continued to
defame her in the period between the submission of the fraud complaint and her arrest,
but points us to no evidence in the record on this point. Rather, she alleges that she is
entitled to a negative inference because Shaw’s attorney, Ryan, cited attorney-client
6 Id. 7 (Citation and punctuation omitted.) Brewer v. Schacht, 235 Ga. App. 313, 317 (4) (a) (509 SE2d 378) (1998) (statute of limitation began to run when allegedly defamatory report was submitted at an open meeting, rather than when plaintiff’s injury occurred). Accord Cunningham v. John J. Harte Assocs., Inc., 158 Ga. App. 774, 775 (282 SE2d 219) (1981) (statute of limitation began to run when written report was submitted to county, not from date of injury).
14 privilege and the work-product doctrine in declining to answer deposition questions
regarding Shaw’s communications with the Board and with law enforcement.
Although Garcia initially filed a motion to compel Ryan’s testimony, she voluntarily
withdrew it. Pretermitting whether a negative inference could obtain here, we decline
to permit Garcia to pursue on appeal that which she abandoned in the trial court.8
Thus, Garcia’s arguments that Shaw’s actions constituted a continuing injury
are unavailing. In an analogous situation involving a defamation case related to a
series of newspaper articles, we determined that the statute of limitation began to run
on the last date that the news source spoke to reporters, rather than on the first date
that an article in a series was published.9 Here, the facts do not support a claim that the
purported injury was inflicted over a period of time, as the alleged defamatory
8 See, e.g., Peterson v. Baumwell, 202 Ga. App. 283, 285 (2) (414 SE2d 278) (1991) (failure to oppose motion to compel amounts to “acquiescence by silence” and waives right to appeal, as a party may not complain of a judgment or ruling his own conduct aided in causing). 9 Torrance v. Morris Publishing Group LLC, 281 Ga. App. 563, 566 (1) (636 SE2d 740) (2006) (libel is published when it is communicated to any person other than the party libeled); Scouten v. Amerisave Mtg. Corp., 283 Ga. 72, 73 (1) (656 SE2d 820) (2008) (publication of slander or oral defamation occurs upon communication to anyone other than the person slandered).
15 publication to the Board of the fraud complaint constituted a completed act. 10 We find
no error, and affirm.
Judgment affirmed. Andrews, P. J., Doyle, P. J., and Boggs, J., concur, Miller,
P. J., Phipps, P. J. and Ray, J., concur in Division 2 and dissent in Division 1.
10 See Cunningham, supra at 774.
16 A12A1667. GARCIA v. SHAW INDUSTRIES, INC.
R AY, Judge.
Because the majority opinion incorrectly finds that a rational jury could not find
Shaw’s conduct either outrageous or extreme, I respectfully dissent to Division 1; I
concur fully in Division 2.
Garcia has provided evidence amply evincing a fact question for the jury on the
issue of whether Shaw’s conduct in filing the fraud complaint with the Board, and in
taking steps to engineer her arrest, was extreme and outrageous. First, Shaw filed the
Board complaint alleging fraud when it knew or should have known that a fraud claim
could not survive because an essential element necessary to support such a claim –
injury – was entirely absent. Shaw’s attorney filed the fraud complaint on the
company’s behalf, implying that Garcia was not entitled to Workers’ Compensation
benefits, even though Shaw never disputed Garcia’s job-related injury or her
entitlement to medical and TPD benefits. See Earth First Grading v. Gutierrez, 270
Ga. App. 328, 330 (2) (606 SE2d 332) (2004) (illegal immigration status does not bar
an employee from receiving Workers’ Compensation benefits). Georgia law defines the tort of fraud not only as the “willful misrepresentation
of a material fact, made to induce the other to act,” but also requires that the other
party “act[] to his injury.” (Footnote omitted; emphasis supplied.) Weaver v. Pizza Hut
of America, Inc., 298 Ga. App. 645, 652 (3) (680 SE2d 668) (2009). Given that no one
disputes Garcia’s entitlement to the benefits mentioned above, a fraud claim would
necessarily fail for lack of proof of injury either to Shaw or the Board.1
Further, Garcia provided other evidence showing that Shaw
engaged in intentional or reckless conduct of an extreme and outrageous nature that caused her severe emotional distress. This conduct must be of such serious import as to naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress. . . . And while some conduct may not rise to the requisite level of outrageousness and egregiousness as a matter of law, once the evidence shows that reasonable persons might find the presence of extreme or outrageous conduct, the jury must find the facts and make its own characterization.
(Punctuation and footnotes omitted.) Turnage v. Kasper, 307 Ga. App. 172, 182-183
(1) (c) (704 SE2d 842) (2010).
1 Although the majority expends some effort in outlining Shaw’s argument that Garcia is not entitled to TTD benefits because her inability to work is caused by her status as an unauthorized worker, rather than by her injury, this recitation is utterly irrelevant. Garcia’s eligibility for TTD benefits is not before us on appeal.
2 Further, a rational and impartial jury could find that Shaw acted intentionally
or recklessly, and in an extreme and outrageous manner, given that its attorney filed
a fraud complaint containing incomplete information that foreseeably led a
government agency to instigate Garcia’s arrest. See Fleming v. U-Haul Co. of Ga.,
246 Ga. App. 681, 685 (5) (541 SE2d 75) (2000) (jury could find intentional infliction
of emotional distress where, despite U-Haul’s knowledge of circumstances causing
defendant not to return rented truck, it nonetheless engineered his arrest).
Here, the record shows that Shaw’s attorney, Ryan, filed the fraud complaint
on Shaw’s behalf and failed to reference or include a copy of the July 26, 2007, Form
WC-14 notice of claim Garcia had filed identifying herself under both the Garcia and
Sanchez names. Garcia revealed this dual identity prior to receiving any Workers’
Compensation checks from Shaw’s third-party administrator. The record contains
evidence that Shaw was copied on this WC-14 notice. The record also contains
deposition evidence from other employees that Shaw supervisors knew of Garcia’s
dual identity even before the WC-14 was filed. Additionally, the record contains
evidence that when Shaw purchased Modern Fibers, where Garcia’s husband worked,
Garcia reapplied for her Modern Fibers job at Shaw using the Sanchez name. Garcia
3 deposed that the Shaw employee who helped her fill out the application told her to
apply using the Sanchez name, rather than her real name.
The majority’s response to this behavior on Shaw’s part is to state that,
“[a]though we do not condone Shaw’s conduct, we conclude that it does not rise to the
level of extreme and outrageous conduct necessary to sustain a claim of intentional
infliction of emotional distress.” I find this response inadequate.
First, the majority falls into the same trap that caught the trial court: it chooses
sides. This is an appeal from the grant of summary judgment to Shaw. We must view
the evidence in the light most favorable to the non-moving party, that is, Garcia.
Viewing the facts appropriately, it is abundantly clear that a rational jury could find
that Shaw acted outrageously or maliciously in inducing Garcia to cash checks it
knowingly issued under her false name – then later accused her via the Board
complaint of “suspected identity fraud” and “suspected misrepresentation for the
purpose of obtaining workers’ compensation benefits.” Further, a rational jury could
find that Shaw was complicit in perpetuating Garcia’s use of the Sanchez name when
its employee encouraged her to reapply for her job under that name. Thus, any
insinuation that Shaw was acting altruistically in attempting to curtail Garcia’s illegal
behavior seems inconsistent with this evidence.
4 Even if the self-serving affidavits of Shaw’s attorney and employee stating that
they bore Garcia no ill will constitute “sworn testimony [that] evidences [a party’s]
good faith in filing [a] complaint” such that Garcia “cannot rest upon [her] allegations
or denials but is cast with the burden of showing there was a genuine issue for trial,”
(Citation and punctuation omitted.) Farrar v. Macie, 297 Ga. App. 192, 195 (3) (676
SE2d 840) (2009), Garcia has clearly met this burden, creating a fact question for trial.
Also, as to Shaw’s provision of incomplete information to the Board, I find it
telling that, after Garcia’s arrest, her Workers’ Compensation lawyer obtained her
prompt release from jail on her own recognizance even though Garcia was being held
on $8,000 bail. He did this by providing the fraud unit’s supervisor with a copy of the
Form WC-14, which Shaw never gave the Board, and which showed that Shaw knew
of Garcia’s dual identity when it issued her checks under the Sanchez name. The
majority’s claim that everything Shaw stated in the complaint was “true” is in itself
misleading. There is ample evidence from which a jury could find that Shaw omitted
a material fact from that complaint when it concealed from the Board its knowledge
that Garcia was using the Sanchez name, and that even with this knowledge, it
initiated payments to her under the Sanchez name – then accused her of fraud and
using a false identity. Concealing a material fact constitutes fraud if Shaw was
5 obligated to communicate that fact based upon the circumstances of the case. See Kent
v. White, 238 Ga. App. 792, 793 (1) (a) (520 SE2d 481) (1999).
There also is evidence from which a jury could find that Garcia suffered severe
emotional distress. Garcia deposed that after being arrested as she was leaving her
lawyer’s office, she was taken to jail and not released until the next day. Because of
her absence, her four school-age children had to be placed in the care of nuns. She
suffered pain in her chest that frightened her, and she felt as if she were suffocating.
After leaving jail, she went to the emergency room, where she was examined for signs
of a heart attack or panic attack. Further, Garcia deposed that immigration agents later
came to her home, frightening her and her children. The agents informed her of
deportation proceedings, and told her that they had come because Ryan, Shaw’s
attorney, had contacted them. These events would “naturally give rise to such intense
feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe
emotional distress.” (Footnote and punctuation omitted.) Turnage, supra at 183 (1) (c).
Accord Gordon v. Frost, 193 Ga. App. 517, 520-522 (1) (388 SE2d 362) (1989)
(concluding that the eight or nine hours plaintiff spent in jail would naturally give rise
to the emotions necessary to support a claim.)
6 The causal link between Garcia’s emotional distress and Shaw’s conduct is
clear. See Turnage, supra at 188 (2). The evidence shows that Luanne Clarke, an
attorney practicing with Shaw’s outside law firm, when asked if her firm had anything
to do with Garcia’s arrest, deposed that the arrest took place “at the request of a
client.” Further, Shaw’s attorney, Ryan, deposed that his filing of the fraud complaint
on Shaw’s behalf led to the Board’s investigation. That investigation logically led to
the Board’s fraud unit swearing out the warrants that led to Garcia’s arrest. Here, the
evidence clearly presents a fact question for the jury as to whether there was a causal
connection between Shaw’s actions and Garcia’s allegation of emotional distress.
Finally, although the majority analyzes whether OCGA § 34-9-24 (d) and
OCGA § 51-5-7 provide a safe harbor protecting Shaw from Garcia’s claims, it fails,
ultimately, to decide the issue. To qualify for these protections, Shaw must have acted
“[i]n the absence of fraud or malice,” OCGA § 34-9-24 (d), or “in good faith.” See
OCGA § 51-5-7. I believe neither Code section protects Shaw. From the facts outlined
above, a rational jury assuredly could find evidence of fraud, bad faith, or malice on
Shaw’s part, barring the company from the protections of OCGA §§ 34-9-24 (d) and
51-5-7.
7 I am authorized to say that Presiding Judge Phipps and Presiding Judge Miller
join in this dissent as to Division 1.