 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
City of Warner Robins v. Baker5/31/2002
In this case, Milton Baker's employer, the City of Warner Robins, appeals from the trial court's order granting Baker's motion to extinguish the city's subrogation lien asserted under OCGA § 34-9-11.1 (b) for payments made to Baker under the Georgia Workers' Compensation Act, OCGA §§ 34-9-1 through 34-9-421 . The city raises four enumerations of error, contending that the trial court made procedural and evidentiary errors, wrongly assigned the burden of proof, and erred in its conclusion. We find no error and affirm the judgment below.
The record shows that Baker was employed by the city as a meter reader. He was injured in an automobile accident in the course of his employment on February 2, 1995, and the city accepted the injury as compensable, paying medical and income benefits. Baker filed suit against the tortfeasor on January 28, 1997, and began negotiations leading to a settlement. The city was aware of the negotiations and informed Baker of its intent to file a subrogation lien against any settlement he might receive pursuant to those negotiations. The city did not, however, intervene in the lawsuit. In September 2000, Baker accepted a settlement from the tortfeasor's insurer in the amount of $90,000 and the action was dismissed with prejudice. In June 2001, Baker filed a motion to extinguish the city's subrogation lien. He argued both that the city had waived its lien or was estopped to enforce it and that he had not been "fully and completely compensated" as required by OCGA § 34-9-11.1 (b). The trial court granted Baker's motion after a hearing, and the city appeals.
1. In two enumerations of error, the city contends the trial court erred procedurally by admitting evidence at the hearing on Baker's motion.
(a) The city first argues that it was given no notice that the hearing was to be evidentiary in nature, that the court did not specifically direct that an evidentiary hearing be held, as permitted under OCGA § 9-11-43 (b), that it was surprised by the court's decision to allow evidence, and that its argument was prejudiced thereby.
We first note that no transcript of the hearing is included in the record. We cannot, therefore, review for error any evidentiary rulings made by the trial court. An appellant has the burden of providing us with a sufficient record to enable us to review the enumerations of error raised. When the error is shown only in the appellant's brief and not by the record, we must assume that the trial court's rulings were correct. Barnett Bank v. Hazel, 251 Ga. App. 836, 838-839 (2) (555 SE2d 195) (2001).
In addition, the city should have been aware that evidence would be presented at the hearing, because the issue for decision was whether the city could enforce its subrogation lien. Ultimately, this was dependent upon whether Baker had been fully and completely compensated, which is a mixed question of law and fact. Anthem Cas. Ins. Co. v. Murray, 246 Ga. App. 778, 780-781 n. 10 (542 SE2d 171) (2000). It therefore requires the presentation of evidence.
But even if the trial court did err in admitting evidence, any prejudice to the city was cured by the trial court's holding the record open for 15 days after the hearing, to permit the city to review and respond to Baker's evidence and to present its own evidence. Moreover, any error in the admission or exclusion of evidence that in no event could have affected the outcome of the case is deemed harmless. Powers Ferry Constr. v. Commerce Builders, 191 Ga. App. 327, 329 (2) (381 SE2d 755) (1989). As discussed infra in Division 3, any error in the admission of evidence at the motion hearing could not have affected the outcome, because the city cannot come forw
Page 1 2 3 Georgia Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|