Vlahos v. Sentry Insurance

426 S.E.2d 350, 262 Ga. 737, 93 Fulton County D. Rep. 584, 1993 Ga. LEXIS 239
CourtSupreme Court of Georgia
DecidedFebruary 18, 1993
DocketS92G0882
StatusPublished
Cited by1 cases

This text of 426 S.E.2d 350 (Vlahos v. Sentry Insurance) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vlahos v. Sentry Insurance, 426 S.E.2d 350, 262 Ga. 737, 93 Fulton County D. Rep. 584, 1993 Ga. LEXIS 239 (Ga. 1993).

Opinions

Sears-Collins, Justice.

We granted certiorari in this case to determine whether an employee who has been continuously employed before disability and whose income is accruing is entitled to benefits for the loss of income pursuant to OCGA § 33-34-4 (a) (2) (B). Vlahos v. Sentry Ins. Co., 203 Ga. App. 540 (417 SE2d 180) (1992). We conclude that such an employee is entitled to recover the amount of the accrued income that the employee can prove with reasonable certainty would have been paid if not for the employee’s injury.

The facts in the present case are as follows: The appellant, Angie Vlahos, was a full-time employee of All Auto Parts from 1980 to 1988, when it closed. Vlahos and her sister-in-law took over the business in 1983, and operated the business as a partnership until it was incorporated in 1986. From 1984 until it closed in 1988, All Auto Parts experienced drastically decreasing sales and similarly increasing losses. In 1986, Vlahos was paid a salary of $7,665 for the year. For the years 1987 and 1988, the corporate books of All Auto Parts reflect that a salary was being accrued for Vlahos at a rate of $300 per week. The company, however, was never in a financial position to pay Vlahos the accrued salary.

On October 29, 1988, Vlahos sustained injuries in an automobile accident and was physically incapable of returning to work. All Auto Parts closed shortly after this accident. The accountant for All Auto Parts testified that it had been the hope of Vlahos, if All Auto Parts had remained in business, to sell the inventory of the corporation, realize a profit, and collect her salary. No evidence was offered to show whether the inventory would have been sufficient to accomplish that goal.

Vlahos subsequently instituted this action against Sentry to obtain, among other things, lost-income benefits under § 33-34-4 (a) (2) (B). Sentry claimed that Vlahos was not entitled to lost-income benefits because at the time of the accident she had no income. The trial court agreed and granted summary judgment to Sentry. The Court of [738]*738Appeals affirmed, in a whole-court decision. The majority found that, as a matter of law, Vlahos failed to show with reasonable certainty that she lost any income, because All Auto Parts’ history of profitability did not afford her a reasonable expectation that the accrued salary would ever be paid.

Three of the four dissenting judges on the Court of Appeals concluded that whether All Auto Parts would ever be able to pay Vlahos’ salary was irrelevant to the issue of Vlahos’ right to recover lost income. These dissenters concluded that, because Vlahos had been continually employed and because there was no evidence the accrued income was fraudulent, Vlahos was entitled to recover lost income benefits as a matter of law.

1. The first issue for resolution arises from the following, often-quoted, test for determining if a plaintiff is entitled to recover lost income.

To recover benefits for “loss of income or earnings ...” pursuant to OCGA § 33-34-4 (a) (2) (B), an insured is required merely to establish with “reasonable certainty” the fact and amount of such lost income or earnings, and this he may accomplish either by showing that he previously had accepted an offer of income-generating employment for the period in question or by showing “a continuous pattern of employment prior to the period of disability.”

(Emphasis in original.) Auto-Owners Ins. Co. v. Sapp, 185 Ga. App. 661, 662 (365 SE2d 286) (1988). Accord Allison v. Auto-Owners Ins. Co., 256 Ga. 446, 447 (349 SE2d 682) (1986); Midland Ins. Co. v. West, 175 Ga. App. 419, 420-421 (333 SE2d 628) (1985).

Vlahos contends that, under this test, she is entitled to recover lost income benefits as a matter of law based solely on the evidence of her continuing pattern of employment, irrespective of whether that employment was generating any income. We disagree with this proposition.

Although West, supra, 175 Ga. App.; Sapp, supra, 185 Ga. App.; and Allison, supra, 256 Ga., have language that might suggest such a rule, the language in those cases concerning a continuous pattern of employment must be read in view of the proposition which those cases say the continuous pattern of employment is offered to prove — both the fact and the amount of a plaintiff’s lost income. Thus, properly read, the phrase “continuous pattern of employment” must encompass not only the fact of employment but also that that employment is generating income.

Moreover, the cases that have given rise to the phrase “continuous pattern of employment” mandate this conclusion. In Leonard v. [739]*739Preferred Risk Mut. Ins. Co., 247 Ga. 574, 575 (277 SE2d 675) (1981), this Court first stated that a plaintiff could carry his or her burden of proving the fact and amount of lost income by showing “a continuous pattern of employment.” We did not state that the employment had to be income-generating. However, we relied on State Farm Mut. Auto. Ins. Co. v. Smith, 245 Ga. 654 (266 SE2d 505) (1980), for our holding in Leonard, and in Smith we held that, even though the plaintiff had been continuously employed by her husband’s business, she was not entitled to lost-income benefits because she had not been generating income with her work, id. at 656. Leonard thus must be read as implicitly requiring that the continuous employment be income-generating. Leonard served as the basis of the language concerning continuous employment in West, supra, 175 Ga. App.; Sapp, supra, 185 Ga. App.; and Allison, supra, 256 Ga.

Finally, it would be inconsistent to have a rule that a plaintiff can obtain lost income benefits based on an offer of employment only if that employment is income-generating, Sapp, supra, 185 Ga. App. at 662, but not to place a similar requirement on a plaintiff seeking benefits based on pre-disability employment.

For these reasons, we conclude that a plaintiff must establish that his or her continuous employment was income-generating.

2. The next issue is whether, as Vlahos contends, the accrual of income should be considered income-generating, regardless of whether that accrued income would have ever been paid. In this regard, we conclude that a plaintiff must establish with reasonable certainty that, but for the accident, the accrued income would have actually been paid. To hold otherwise would require an insurer to pay lost income benefits even in a case in which the evidence established that the plaintiff’s employer would never have paid the plaintiff his or her accrued income. In such a case, the insurer would be paying benefits for income not actually lost by the plaintiff. Such a result is contrary to the purpose of lost-income cases, which is to permit a plaintiff to recover income actually lost due to injury. State Farm Mut. Auto. Ins. Co. v. Ainsworth, 198 Ga. App. 740, 746 (402 SE2d 759) (1991); Appleman, Insurance Law and Practice, Vol. 8D, § 5181.35 (1981).

The dissent erroneously relies on West, supra, 175 Ga. App. at 421, for the proposition that a plaintiff may recover lost-income benefits if he or she is “entitled” to wages from his or her employer.

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Related

Vlahos v. Sentry Insurance
435 S.E.2d 528 (Court of Appeals of Georgia, 1993)

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Bluebook (online)
426 S.E.2d 350, 262 Ga. 737, 93 Fulton County D. Rep. 584, 1993 Ga. LEXIS 239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vlahos-v-sentry-insurance-ga-1993.