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Yeomans & Associates Agency7/15/2005
WHOLE COURT
These appeals arise from a judgment on a jury verdict in favor of George Bowen and his business, Bowen Tree Surgeons, Inc., in their suit against their insurance agency, Yeomans & Associates Agency, Inc. ("Yeomans"), and their insurer, Canal Indemnity Company ("Canal"). In Case No. A05A0637, Yeomans contends that the trial court abused its discretion in admitting certain evidence and erred in instructing the jury. In Case No. A05A0638, Canal challenges the grant of partial summary judgment to Mr. Bowen and Bowen Tree Surgeons, contends it was entitled to a directed verdict, and claims the court abused its discretion in excluding evidence. Finding no error, we affirm.
The record on appeal shows the following relevant facts. On December 18, 2000, Michael S. Black was driving his car when he collided with a car occupied by Joel and Brenda Cowart. Both of the Cowarts were injured as a result of the collision. The Cowarts filed suit in Burke County (hereinafter, "the Cowart suit") against Black and Black's employer, Bowen Tree Surgeons. The suit alleged that Black's negligence caused the collision, that Black was acting within the scope of his employment at the time of the collision, and, therefore, Bowen Tree Surgeons was liable for Black's negligence under the doctrine of respondeat superior.
At the time of the collision, Mr. Bowen had several personal and business insurance policies through Yeomans, an independent insurance agency which sells different types of insurance from several insurance companies. Bowen Tree Surgeons' business policies included a motor vehicle policy issued by Auto-Owners that covered its fleet of business vehicles, and a commercial general liability coverage policy issued by Canal (hereinafter, the "Canal policy"). A Yeomans insurance agent, Lisa Bertoch, regularly assisted Mr. Bowen with the policies, handling claims and collecting premium payments on behalf of the insurers. According to Bertoch, her duties as an insurance agent included acting as an "outlet" between her clients and the insurers, and she recognized that an insurer might be bound by the acts of an insurance agent. Whenever Mr. Bowen submitted a claim under the Canal policy, Bertoch sent it to a brokerage firm, the Strickland General Agency, which issued the policy on behalf of Canal. Strickland would, in turn, send the claim to Canal for processing. Bertoch testified that this procedure was the "normal course of action" between the parties and that none of the parties ever objected to the procedure. As part of its employee training, Yeomans instructed its agents that, if they were not sure which insurer would cover a claim, or if there was any doubt as to whether an insurer would cover a claim, the agent should file it with every insurer that might provide coverage. Because Bertoch handled Mr. Bowen's insurance policies, Mr. Bowen never had any direct contact with Strickland or his insurers about changing or renewing policies, making premium payments, or submitting claims, although a Canal claim representative came to Bowen Tree Surgeons' office a few times to investigate claims that had been submitted.
When Mr. Bowen received notice of the Cowart suit, he delivered the notice to Bertoch, telling her his business had been sued. Mr. Bowen told Bertoch that, at the time of the Cowart collision, Black was off duty and driving his own car. Bertoch told Mr. Bowen that she would take care of the lawsuit and forward it to the insurer. Bertoch sent the notice of the Cowart suit to Auto-Owners, but did not submit the notice to Canal because she believed Canal would not provide coverage for the collision. In making that decision, Bertoch relied upon her general training an
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