Matthew Terry v. Old Hat Chimney, LLC

• Court: Court of Appeals of Georgia
• Decided: August 26, 2021
• Docket: A19A1104
• Status: Published

Opinion

FIRST DIVISION BARNES, P. J., MERCIER and BROWN, 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. https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.

August 18, 2021

In the Court of Appeals of Georgia A19A1104. TERRY v. OLD HAT CHIMNEY, LLC.

MERCIER, Judge.

Mathew Terry sued Old Hat Chimney, LLC, and its employee, Nickolas James

Payne, for damages allegedly sustained when a company van driven by Payne

rear-ended Terry’s vehicle. Terry asserted a negligence claim against Payne. He

further alleged that Old Hat was (1) vicariously liable for Payne’s negligence based

on the doctrine of respondeat superior, and (2) directly liable to him for negligently

hiring, training, and supervising Payne. Terry did not raise a claim for punitive

damages.

After conceding that Payne was an Old Hat employee working within the scope

of his employment at the time of the collision, Old Hat moved for partial summary

judgment. Specifically, it sought judgment as a matter of law on Terry’s direct liability claim, arguing that any recovery for negligent hiring, training, and

supervision would be duplicative because the company had “admitted to the essential

elements of the respondeat superior theory of vicarious liability.” The trial court

granted Old Hat’s motion, and Terry appealed. We affirmed the trial court’s judgment

on August 20, 2019, noting that pursuant to Hosp. Auth. of Valdosta/Lowndes County

v. Fender, 342 Ga. App. 13 (802 SE2d 346) (2017),

if a defendant employer concedes that it will be vicariously liable under the doctrine of respondeat superior if its employee is found negligent, the employer is entitled to summary judgment on the plaintiff’s claims for negligent entrustment, hiring, training, supervision, and retention, unless the plaintiff has also brought a valid claim for punitive damages against the employer for its own independent negligence.

Terry v. Old Hat Chimney, 351 Ga. App. 673, 674 (832 SE2d 650) (2019).

The Supreme Court of Georgia subsequently granted Terry’s application for

certiorari, vacated our decision, and remanded the case to us for reconsideration in

light of Quynn v. Hulsey, 310 Ga. 473 (850 SE2d 725) (2020). See Terry v. Old Hat

Chimney, 2020 Ga. LEXIS 978 (2020). In Quynn, the Supreme Court considered

whether the historical rule articulated in Fender (known as the “Respondeat Superior

Rule”) had been abrogated by OCGA § 51-12-33, Georgia’s apportionment statute.

2 The Court ultimately determined that “the Respondeat Superior Rule is inconsistent

with the plain language of the apportionment statute,” id. at 477, and it overruled

Fender and similar decisions that hold otherwise. See id. at 482 n.10.

In moving for partial summary judgment, Old Hat relied exclusively on the

Respondeat Superior Rule, and the trial court granted Old Hat’s motion solely on that

basis. As recently found in Quynn, however, the rule and the cases applying it are no

longer good law. Old Hat has offered no other grounds for affirming the trial court’s

summary judgment ruling. Accordingly, we reverse.

Judgment reversed. Barnes, P. J., and Brown, J., concur.