KURT S. ODENWALD, Judge.
Introduction
KURT S. ODENWALD, Judge.
Plaintiff Gerald Grubbs, Jr. (Claimant) filed a declaratory judgment action against Defendant Standard Insurance Company (Standard) seeking a determination of benefits coverage under a group long-term disability policy. In particular, Claimant sought a ruling that Standard was not entitled to offset Claimant's disability benefits by the amount Claimant received in settlement of his workers' compensation claim. Standard appeals the trial court's summary judgment order in which the trial court concluded that Standard may not offset Claimant's long-term disability benefits by the amount of the compromise settlement reached by the parties in Claimant's workers' compensation claim. Because the express provisions of Standard's group disability policy allow a set off of any amount received by Claimant for lost wages under the workers' compensation laws, we reverse the trial court's judgment.
Factual and Procedural Background
Claimant, an employee of the State of Missouri (State) and a member of the Missouri State Employees Retirement System (MOSERS), was insured by a group long-term disability insurance policy (Policy) issued by Standard. Standard determined that Claimant was disabled and entitled to disability benefits under the Policy, and has paid Claimant benefits since March 2004.
After Standard began paying Claimant's disability benefits under the Policy, Claimant filed a claim for permanent partial disability under the Missouri Workers' Compensation Act, Section 287.010 et seq., RSMo 2000. Claimant filed the workers' compensation claim as a result of an injury he sustained in the course of his employment in December 2003. Claimant subsequently settled his workers' compensation claim. Under the terms of the settlement, Claimant's employer agreed to pay him a lump sum of $24,165.93, which reflected a 35 percent partial disability of Claimant's left shoulder. The Second Injury Fund agreed to pay Claimant a lump sum of $60,000. These amounts were subject to reduction by attorney fees and out-of-pocket expenses in an aggregate amount of $24,136.92. The parties agreed that the net payment to Claimant for the settlement of his workers' compensation claim was equivalent to $144.30 per month to Claimant for the remainder of his life. Claimant agreed to accept these sums in full settlement of all claims stemming from the injury arising out of Claimant's employment. Claimant, his employer, and the Second Injury Fund entered into a Stipulation for Compromise Settlement stating the terms of the settlement agreement. The parties expressly stipulated that no portion of the settlement amount was attributable to rehabilitation expenses, death benefits, burial expenses, or medical expenses.
Unless otherwise noted, all further statutory references are to RSMo 2000.
After Claimant settled his workers' compensation claim, Standard determined that pursuant to the terms of that settlement, Claimant received the equivalent of $144.30 per month under a workers' compensation law for lost wages. Standard further concluded that Claimant's settlement of his workers' compensation claim was "deductible income" as defined in the Policy. Thus, Standard deducted $144.30 from its monthly payment of disability benefits to Claimant. Claimant then filed his motion for declaratory judgment seeking to prohibit the offset.
By agreement, the parties stipulated to the facts of the case and filed cross motions for summary judgment. The Joint Stipulation of Facts provides that the Policy defines the benefit payable to Claimant as "60% of [your] predisability earnings reduced by deductible income." The Policy defines "deductible income," to include:
Any amount you receive or are eligible to receive for lost wages because of your disability arising out of or in the course of employment with the Employer, including amounts for partial or total disability, whether permanent, temporary, or vocational, under any of the following:
a. A workers' compensation law;
The Policy then provides as an "Exception to Deductible Income" any amount paid under a Workers' Compensation Act or similar law for benefits other than lost wages.
The trial court granted Claimant's motion for summary judgment and denied Standard's motion for summary judgment finding that Standard was precluded from offsetting Claimant's long-term disability benefits by the amount attributable to the Stipulation for Compromise Settlement, specifically $144.30 per month, past, present, or future. As grounds for its ruling, the trial court found that: (1) the lump sum payment to Claimant was consideration for Claimant's compromise of litigation, specifically claims for permanent disability and future medical treatment; (2) lost wages in the context of the workers' compensation law only applies to compensation paid to the employee for temporary total disability benefits as provided by Section 287.160 and 287.170, and as total disability as defined by Section 287.020.7, and specifically, compensation for lost wages while the employee is unable to work while going through the healing process; (3) the compensation received by Claimant from the employer for the permanent disability to Claimant's left shoulder as a result of his work-related accident on December 9, 2003, was not the same as "lost wages;" (4) the compensation received by Claimant from the Second Injury Fund for the permanent disability attributed to Claimant's pre-existing medical conditions was not the same as "lost wages;" and (5) Standard's group long-term disability insurance policy is ambiguous and must be construed in favor of coverage for Claimant.
This appeal follows.
Point on Appeal
In its sole point on appeal, Standard claims that the trial court erred in denying its motion for summary judgment and granting summary judgment for Claimant because under the terms of Standard's group long-term disability insurance policy, Standard was entitled to offset any amount Claimant received in settlement of his workers' compensation claim for lost wages against the benefits otherwise payable to him under the terms of that policy. Standard asserts that Claimant's settlement of his claim for permanent partial disability under Missouri's workers' compensation laws was a recovery of "lost wages" within the meaning of the policy, thereby allowing Standard to offset the workers' compensation settlement from the benefits recoverable by Claimant under the Policy.
Standard of Review
The standard of review for an appeal from summary judgment is essentially de novo. Am. Family Mut. Ins. Co. v. St. Clair, 295 S.W.3d 586, 591 (Mo.App. E.D. 2009), citing ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment will be upheld on appeal if there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Id. Summary judgment is particularly appropriate when construction of a contract is at issue and the contract is unambiguous on its face. Lupo v. Shelter Mut. Ins. Co., 70 S.W.3d 16, 18-19 (Mo.App. E.D. 2002).
Discussion
The appeal before us presents no disputed issue of material fact. The salient issue presented is whether Claimant's workers' compensation settlement was a recovery of lost wages as provided under the Policy or whether the settlement was for something other than lost wages, thereby removing the settlement from the set off provisions of the Policy. The Policy does not define the term "lost wages." Claimant argues the absence of a statutory definition renders the terms of the Policy ambiguous, and therefore not subject to resolution by summary judgment. Standard posits that the Policy is unambiguous despite the lack of guidance from an internal definition because settled Missouri case law recognizes Claimant's workers' compensation settlement as a recovery of lost wages. Specifically, Standard notes that, under Missouri law, workers' compensation payments are divided into two categories, wage-loss payments based on the concept of disability, and payments of hospital and medical expenses occasioned by any work-connected injury, regardless of wage loss or disability. Sheldon v. Bd. of Trs. of the Police Ret. Sys., 779 S.W.2d 553, 556 (Mo. banc 1989). Standard then argues that because the parties expressly stipulated that the workers' compensation settlement specifically excluded any amount attributable to rehabilitation expenses, death benefits, burial expenses, or medical expenses, the settlement represented a recovery for Claimant's lost wages. We agree.
I. The Policy is Not Ambiguous
As we construe the Policy granting the disability benefit payable to Claimant from Standard, we are mindful that insurance policies are contracts; thus, the rules of contract construction apply. Lupo, 70 S.W.3d at 19. The words of a policy are given their ordinary meaning unless it is obvious that a technical meaning was intended. Krombach v. Mayflower Ins. Co. Ltd., 785 S.W.2d 728, 731 (Mo.App. E.D. 1990). Courts cannot create an ambiguity to enforce a particular construction. Rodriguez v. Gen. Accident Ins. Co. of Am., 808 S.W.2d 379, 382 (Mo. banc 1991). Moreover, where no ambiguity exists in the contract, the court enforces the policy as written. Peters v. Employers Mut. Cos. Co., 853 S.W.2d 300, 302 (Mo. banc 1993).
The issue of whether a contract is ambiguous is a question of law. Id. The Missouri test for ambiguity is clear. The policy must be read as a whole to determine the parties' intent. Oak River Ins. Co. v. Truitt, 390 F.3d 554, 557 (8th Cir. 2004), citing Kyte v. Am. Family Mut. Ins. Co., 92 S.W.3d 295, 298-99 (Mo.App. W.D. 2002). A contract is ambiguous only if reasonable people may fairly and honestly differ in their construction of the terms because the terms are susceptible to more than one meaning. Lupo, 70 S.W.3d at 19. A contract is not ambiguous merely because the parties disagree over its meaning. Id. Evidence of how the contract was understood or acted upon by the parties is only used when the contract or a contract term is unclear. Nickles v. Auntie Margaret Daycare Corp., 829 S.W.2d 614, 616 (Mo.App. E.D. 1992).
Ambiguous language is construed against the insurer. Peters, 853 S.W.2d at 302. Likewise, so is limiting language. Chase Resorts, Inc. v. Safety Mut. Cas. Corp., 869 S.W.2d 145, 150 (Mo.App. E.D. 1993). If an ambiguity exists, the policy language will be interpreted as understood by the lay person who purchased it. Oak River Ins. Co., 390 F.3d at 558. Courts should not adopt an interpretation neutralizing a policy provision if another interpretation gives it effect. Id.
Standard argues that the Policy is not ambiguous because the Policy clearly provides for a setoff for workers' compensation benefits, unless the benefits paid are not for lost wages.
Because the term "lost wages" is not defined by the Policy, Claimant asserts the term must be given its ordinary meaning. The ordinary meaning of "lost wages," Claimant contends, is not the "technical, philosophical or scientific meanings of terms, nor a restrictive meaning acquired in legal usage." Burns v. Smith, 303 S.W.3d 505, 511 (Mo. banc 2010). Claimant suggests the "ordinary meaning" of the term by referring to the Merriam Webster online dictionary, which defines "lost" as "taken away or beyond reach or attainment" and "wage" as "a payment usually of money for labor or services usually according to contract and on an hourly, daily, or piecework basis — often used in plural." Merriam Webster, available at http://www.merriam-webster.com. Taken together, we find that the ordinary meaning of the term "lost wages" applies to payments Claimant would have received, but which have been taken away or are no longer attainable due to his injury. Even without a definition of "lost wages" contained with the policy, when we apply the ordinary meaning of the term, the Policy states that Claimant's disability benefit may be reduced by any amount Claimant receives under the worker's compensation law to compensate Claimant for payments that have been taken away or are no longer attainable due to his injury. We hold that applying the "ordinary meaning" of the term "lost wages" as found in Merriam Webster is wholly consistent with the term "lost wages" as used in the policy. Accordingly, we hold the Policy to be unambiguous despite the absence of a definition for the term "lost wages."
II. The Stipulation for Compromise Settlement was for lost wages.
Having determined "lost wages" as used in the Policy is consistent with the simple and objective standard for an ordinary person of average understanding, we next consider whether the Stipulation for Compromise Settlement provided for payment of Claimant's lost wages, or constituted a payment to Claimant for something other than lost wages. Standard argues that the terms of the Stipulation for Compromise Settlement for his workers' compensation claim, when reviewed under Missouri law regarding workers' compensation benefits, mandate a finding that the settlement constituted payment for "lost wages" and thus, Standard's offset was proper.
In the Stipulation for Compromise Settlement, Employer and Claimant agreed:
6. That there are dispute(s) between the Employee and the Employer/Insurer as to the extent and nature of permanent partial disability and future medical care.
7. That there are dispute(s) between the Employee and the Second Injury Fund as to the nature and extent of permanent partial disability, permanent total disability and the liability of the Second Injury Fund. That the alleged pre-existing disability and percentage are as to BAW (diabetes, anxiety/depression, cardiac), and right shoulder.
8. That because of the dispute(s) it is agreed by the parties to enter into a compromise lump sum settlement under Section 287.390 RSMo.
We note that as part of the joint summary judgment submission made to the trial court, Claimant acknowledged and expressly agreed that no portion of the settlement amount was a payment for rehabilitation expenses, death benefits, burial expenses, or medical expenses. Given this agreement by the parties, we know what the settlement payment did not represent. Acknowledging these parameters, the question before us is whether the settlement amount represents payment for anything other than lost wages. If not, the trial court erred in granting summary judgment in favor of Claimant. In resolving this appeal, we are guided by the workers' compensation statutes and the clear interpretation of those statutes by Missouri courts.
We begin our worker's compensation analysis with Section 287.190, which provides payment for permanent partial disability under the statutory scheme. Section 287.190 provides a computation by which the payment from an employer to an employee for a work-related injury causing a permanent partial disability is to be determined. The statute specifies that the compensation to be paid is determined by a schedule of losses for specific injuries. The schedule multiplies the employee's "weekly earnings" or "weekly wage" by a pre-determined number of weeks depending on the severity of the injury. Section 287.190. Although the statute does not explicitly state that the compensation paid pursuant to its terms is to compensate the employee for "lost wages," the plain language of the statute leaves no doubt that the compensation paid under the statute is properly considered payment for the injured employee's lost wages.
Claimant argues and the trial court found that the lump sum payment made to Claimant was not for lost wages, but represented consideration for the parties' compromise of litigation, specifically Claimant's claims for permanent disability and future medical treatment. The trial court further found that "lost wages" is not equivalent to "compensation" paid for a permanent disability under the workers' compensation law. We disagree.
The dominant theme of Claimant's argument to the trial court and on appeal is that an actual loss of earnings is not an essential element to a claim of permanent partial disability, and therefore, a recovery for a permanent partial disability does not equate to a recovery for lost wages. Citing Seeley v. Anchor Fence, 96 S.W.3d 809, 819 (Mo.App. S.D. 2002), and Wiele v. Nat'l Super Markets, Inc., 948 S.W.2d 142, 148 (Mo.App. E.D. 1997) (overruled on other grounds), Claimant asserts that an employee is compensated for a permanent partial disability based on a schedule of losses that does not require an actual loss of earnings, and that the Second Injury Fund liability stems from the "synergistic effect of the disability caused by the primary injury combined with disabilities from the pre-existing medical conditions," which encompasses more than lost earnings.
Although the Seeley court stated that an actual loss of earnings is not an essential element of a claim for permanent partial disability, the court expressly stated that permanent partial disability benefits were meant "to compensate an injured party for lost earnings." Seeley, 96 S.W.3d at 819. Thus, a claimant may indeed return to work, as the Seeley court acknowledged, but the claimant's injury impairs his "efficiency in the ordinary pursuits of life," and therefore the award compensates him for earnings he would have attained, had he been without injury. See id. Claimant suggests that Standard mistakenly equates the term "lost wages" with the term "loss of earning capacity" as used by the courts. We are not persuaded and find no distinction between these terms. In this context, the difference is a matter of semantics, nothing more.
Claimant contends that an actual loss of earnings is not an essential element of a claim for permanent partial disability under Wiele, 948 S.W.2d at 148. While Claimant correctly quotes Wiele, he misconstrues the holding in Wiele by failing to address the quote in context. Wiele addressed, among other issues, the percentage applied to the claimant's permanent partial disability. The Wiele court considered the level of the employee's lost earnings and ability to continue working in determining the appropriateness of the Commissioner's award. Id. Thus, the award reflected lost wages because the award was not as large as it would have been, had the claimant been unable to return to work. Analogizing Wiele to the analysis employed in Seeley, the award for partial permanent disability compensated the Wiele claimant for the injury that impaired his "efficiency in the ordinary pursuits of life," including "lost earnings."
Claimant also avers that his recovery for permanent total disability encompasses more that lost earnings. Section 287.200 addresses the amount to be paid on a workers' compensation claim for a permanent total disability. Like the recovery for a permanent partial disability, the statutory scheme for compensating a permanent total disability is also based upon the weekly compensation paid to the injured worker. Notably, Section 287.200.3 allows for the suspension of the permanent total disability award whenever an injured worker is restored to his regular work by the use of glasses, prosthetics, appliances or physical rehabilitation. The fact that a permanent total disability award may be suspended upon an employee's return to work underscores the statutory scheme of equating the disability award to a worker's lost earnings, and nothing more.
We find the Missouri Supreme Court opinion in Sheldon v. Board of Trustees of Police Retirement System, 779 S.W.2d at 555-56, provides appropriate guidance in this matter. As noted in Sheldon, workers' compensation benefits for physical injury, such as the benefits Claimant received here, are divided into only two categories: wage-loss payments based on the concept of disability, and payment of hospital and medical expenses from a work-connected injury regardless of wage loss or disability. Id. Claimant has not provided any judicial authority to support its contention that a workers' compensation award can be characterized as anything other than wage loss payments or payments for hospital and medical expenses, nor have we found any such authority.
We note that this Court previously has found that permanent partial disability benefits are meant to compensate an injured employee for his lost wages. Hankins Const. Co. v. Missouri Ins. Guar. Ass'n, 724 S.W.2d 583, 587 (Mo.App. E.D. 1986) (overruled on other grounds). In Hankins, where the Missouri Insurance Guaranty Association argued that the loss of earning capacity is conclusively presumed and the amount of an award for permanent partial disability is determined by reference to a schedule of losses, this Court noted:
the reason for [Section] 287.190's presumption is that a permanent injury will in most cases affect earning capacity. The reason for the award of permanent partial disability benefits is to compensate an injured party for lost earnings. The use of the schedule is only for administrative convenience. It simply removes the need to try the issue of what the effect on earning capacity is for each Workers' Compensation claimant, an administrative nightmare in a statutory claims procedure which was intended to be streamlined.
Id.
This "presumption" that a permanent partial disability will result in a loss of wages in an amount computed according to the statutory schedule eliminates the need to prove actual losses. See, e.g., Komosa v. Monsanto Chem. Co., 317 S.W.2d 396, 400 (Mo. banc 1958). We decline to follow Claimant's argument that this presumption undermines the principle stated in Sheldon that workers' compensation awards represent either wage-loss payments based on the concept of disability or the payment of hospital and medical expenses from a work-connected injury.
Because the parties here have expressly agreed that the amount paid to Claimant pursuant to the Stipulation for Compromise Settlement was not for medical expenses, we find under Sheldon, the workers' compensation compromise payment must have been wage-loss payments, or "lost wages."
We hold that the Stipulation for Compromise Settlement entered into for a lump sum workers' compensation award to Claimant from Standard, and not for medical expenses, was an award for "lost wages." Because "lost wages" constitutes deductible income under the Policy provided by Standard, and because the Stipulation for Compromise Settlement was a lump sum payment of lost wages, Standard properly offset the amount Claimant received in the Stipulation for Compromise Settlement from Claimant's long-term disability benefits. We find that the trial court improperly granted Claimant's summary judgment motion in Claimant's declaratory judgment action.
Conclusion
The judgment of the trial court is reversed.
ROY L. RICHTER, C.J., and GARY M. GAERTNER, JR., J., Concur.
DILLARD, Judge.
DECIDED NOVEMBER 30, 2010.
imilar harassment at the hands of the Appellants, such that he had resorted to calling for a police escort when he mowed the lawn or walked his dog out of fear that he too would be arrested and taken from their children.
While Kasper was in jail, Turnage told a neighbor — the grandmother of the young boy who frequently stayed at the Kasper home — that it was a "well known fact" that Kasper was a "drug user[]"; that she drank constantly, beginning as early as 9:00 a.m.; that she was "bipolar" and "not stable"; that she needed to "seek professional help"; and that she intentionally put her children up to mischief. This conversation was recorded and played for the jury. Kasper also presented expert testimony from a certified addiction counselor, who testified that an evaluation performed on Kasper after her arrest showed no evidence of ongoing substance or alcohol abuse, nor any sign of chronic anger issues or violent tendencies. The therapist declined to recommend Kasper for treatment of any kind.
Kasper filed the instant lawsuit, seeking compensatory damages against both Turnage and Penton for malicious prosecution, intentional infliction of emotional distress, and defamation, as well as punitive damages and attorney fees. After hearing the evidence, the jury found in favor of Kasper against both Appellants in the amount of $94,750 on her claim for malicious prosecution; $75,800 on her claim for intentional infliction of emotional distress; $18,950 on her claim for defamation; and $21,000 in attorney fees. The jury declined to award Kasper punitive damages. The trial court then entered judgment on the jury's verdict, and subsequently denied the Appellants' joint motion for judgment notwithstanding the verdict, or, in the alternative, a new trial. This appeal follows.
1. Appellants contend that the trial court erred in denying their motion for directed verdict and/or motion for judgment notwithstanding the verdict and entering judgment on the jury's verdict. Specifically, they assert (a) that there was no evidence from which to conclude that they conspired to commit the tort of malicious prosecution, because the decision to arrest Kasper was made in the independent judgment of the officer, and further that the evidence did not establish a complete lack of probable cause; (b) that the evidence failed to show conduct of an egregious nature sufficient to support a claim that they conspired to intentionally inflict emotional distress upon Kasper; and (c) that Kasper cannot recover for the defamation because she did not prove special damages, Turnage's interaction with the neighbor constituted an "invited" slander, and she failed to prove that Penton conspired to defame her. We will address each of these arguments in turn.
Before doing so, we begin by noting that a trial court's denial of a motion for a directed verdict or judgment notwithstanding the verdict is to be reviewed using the any evidence test, and the evidence is to be construed most favorably toward the party opposing the motion. The question before this Court, then, is not whether the verdict and judgment of the trial court were merely authorized, but whether a contrary judgment was demanded. Put another way, we are required to construe the evidence with every inference and presumption in favor of upholding the verdict, even where the evidence is in conflict. Indeed, so long as there is some evidence to support the jury's verdict, it must be upheld on appeal. This is because jurors are the sole and exclusive judges of the weight and credit given to evidence presented at trial.
Certain Underwriters at Lloyd's of London v. Rucker Constr., 285 Ga. App. 844, 845-46 (2) ( 648 SE2d 170) (2007); see also Lowery v. Roper, 293 Ga. App. 243, 244 n. 1 ( 666 SE2d 710) (2008) (same).
Certain Underwriters at Lloyd's of London, 285 Ga. App. at 845-46 (2); see also Lowery, 293 Ga. App. at 244 n. 1.
See, e.g., City of Atlanta v. WH Smith Airport Servs., 290 Ga. App. 206, 206 ( 659 SE2d 426) (2008).
Id.
See, e.g., Turner Broad. Sys., Inc. v. McDavid, 303 Ga. App. 593, 593-594 ( 693 SE2d 873) (2010).
(a) Civil Conspiracy. Initially, we note that while Kasper did not maintain a separate action for civil conspiracy, she nonetheless asserted throughout the trial that Turnage and Penton conspired to commit each of the three torts for which they were ultimately found liable. And in Georgia,
[e]very agreement between two or more persons to accomplish a[n] . . . unlawful object, or a lawful object by . . . unlawful means, is an unlawful conspiracy, and any person whose rights are injured by acts done in furtherance of such conspiracy has his action at law for redress in damages.
Moreover, the existence of a conspiracy may "be inferred from the nature of the acts done, the relation of the parties, [or] the interests of the alleged conspirators," and, once proven, "makes any actionable deed by one of the conspirators chargeable to all."
Cook v. Robinson, 216 Ga. 328, 330 (5) ( 116 SE2d 742) (1960) (punctuation omitted); see also Prescott v. Carithers, 158 Ga. App. 366, 367 (1) ( 280 SE2d 361) (1981) ("It is not necessary to prove an express agreement or compact among the wrongdoers; their common design may be inferred from the nature of the acts done, the relation between them, their mutual interests in the matter, and other circumstances." (citation and punctuation omitted)).
Cook, 216 Ga. at 329 (4) (citations omitted); see also Nw. Plaza v. Ne. Enters., 305 Ga. App. 182, 193 (4) ( 699 SE2d 410) (2010) (same).
(b) Malicious Prosecution. To prevail on her claim for malicious prosecution, Kasper was required to prove that she was subject to "[a] criminal prosecution which [was] carried on maliciously and without any probable cause and which cause[d] [her] damage[,]" and that the prosecution was instigated by the Appellants.
OCGA § 51-7-40; see also Wal-Mart Stores v. Blackford, 264 Ga. 612, 613 ( 449 SE2d 293) (1994) ("The gravamen of the complaint is the absence of probable cause on the part of the person instituting the prosecution." (citations omitted)); Gooch v. Tudor, 296 Ga. App. 414, 417 (1)(b) ( 674 SE2d 331) (2009) ("The malice contemplated by law in an action for malicious prosecution . . . may consist in personal spite or in a general disregard of the right consideration of mankind[.]" (citation, punctuation and footnote omitted)).
See, e.g., Kaiser v. Tara Ford, Inc., 248 Ga. App. 481, 486 (1) (a) ( 546 SE2d 861) (2001).
(i) Appellants contend that they did not instigate Kasper's arrest because the decision to seek a warrant against her was made independently by the arresting officer after conducting his own investigation. It is true, of course, that "[t]he law draws a fine line of demarcation between cases where a party directly or indirectly urges a law enforcement official to begin criminal proceedings and cases where a party merely relays facts to an official who then makes an independent decision to arrest or prosecute." In the former case, there is potential liability for malicious prosecution, whereas in the latter case there is none. It is clear, though, "that initiation of the criminal action need not be expressly directed by the party to be held liable." A distinction must be drawn, then, between actually instigating or procuring the institution of criminal proceedings, and merely providing information to a law enforcement official without in any way attempting to influence his judgment. A person may be held liable for malicious prosecution when he provides information to an investigating officer that he knows to be false, and in doing so unduly influences the authorities to take the complained of actions.
Wolf Camera v. Royter, 253 Ga. App. 254, 257-58 (1) (a) ( 558 SE2d 797) (2002) (citation and footnote omitted); see also Vojnovic v. Brants, 272 Ga. App. 475, 478 (2) (b) ( 612 SE2d 621) (2005) (same).
Wolf Camera, 253 Ga. App. at 257-58; see also Vojnovic, 272 Ga. App. at 478 (2) (b).
Wolf Camera, 253 Ga. App. at 258 (citation and footnote omitted).
Id.
Id.; see also Vojnovic, 272 Ga. App. at 478 (2) (b).
In the case sub judice, there is considerable evidence to support the jury's conclusion that Turnage and Penton conspired together to instigate Kasper's arrest. It is undisputed that both were fully aware of and had discussed the fact that if Kasper were arrested for aggravated stalking she would be ineligible to be released on bond. It is also undisputed that Kasper in no way communicated to or interacted with the men as she passed by them on her way to the bus stop, and that it was Penton who intentionally placed himself in her path in order to take the photograph (although this information was, unsurprisingly, not mentioned to the officer by Turnage or Penton). Moreover, the men admitted that, even if they were unaware of her intentions as she walked past them, they both observed and ultimately realized that her purpose was to retrieve her children from their designated bus stop (for which she had no alternate route), and maintained they were not threatened by her presence. Nevertheless, the men insisted to the officer that Kasper committed the crime of aggravated stalking by her actions. Indeed, unsatisfied that Kasper was not arrested on the day of the incident, Turnage took it upon himself to go to the police station the following day, with Penton's photograph and audio recording in hand, and "adament[ly]" assert to the officer that he wanted Kasper arrested for aggravated stalking. Finally, as Kasper was being placed in handcuffs, Penton was celebrating, slapping high-fives, and announcing to those in attendance, "we got her" and "[s]he is not getting out this time." These facts were more than sufficient to support the jury's finding that Turnage and Penton together instigated and procured Kasper's arrest.
See, e.g., Ashmore v. Foster, 254 Ga. App. 97, 99-100 (1) (a) ( 561 SE2d 228) (2002) (holding that the evidence supported the jury's conclusion that defendants instigated the prosecution, based in part on solicitor-general's testimony that additional charges against plaintiff were added as the result of a conversation with defendants); Wolf Camera, 253 Ga. App. at 257-58 (1) (a) (concluding that evidence of defendant's request to police that plaintiff be arrested for theft while withholding potentially exculpatory evidence was sufficient to sustain a claim for malicious prosecution); Willis v. Brassell, 220 Ga. App. 348, 350-51 (1) (a) ( 469 SE2d 733) (1996) (finding malicious-prosecution award supported by evidence that defendant gave officer false and/or misleading information leading to plaintiff's arrest).
The fact that the arresting officer testified at trial that the decision to pursue a charge of aggravated stalking against Kasper was made in his individual judgment does not change this result. The officer was operating based upon the photographic and audio evidence provided by Penton in conjunction with Turnage's "very strong[]" assertion that it showed Kasper to have committed the crime of aggravated stalking, both of which were misleading when taken out of the contextual reality that Kasper was merely seeking to retrieve her children from their designated bus stop, which she could not do without passing by the location where the Appellants had intentionally injected themselves. Furthermore, the officer admitted that, but for Turnage's prompting, he would have neither revisited nor taken any action as a result of the bus-stop incident. Appellants cannot insulate themselves from liability by disingenuously asserting that the officer acted independently when the facts belie this contention.
See, e.g., Vojnovic, 272 Ga. App. at 478 (2)(b); Willis, 220 Ga. App. at 350-51 (1) (a).
(ii) We likewise reject Appellants' assertion that Kasper failed to show that a complete lack of probable cause existed for her arrest. One commits the crime of aggravated stalking if such person "in violation of a bond . . . contacts another person . . . without the consent of the other person for the purpose of harassing and intimidating the other person." Essential to this crime is proof that the alleged perpetrator engages in "a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person's safety . . . by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose."
OCGA § 16-5-91 (a).
OCGA § 16-5-90 (a) (1); see also State v. Burke, 287 Ga. 377, 378-79 ( 695 SE2d 649) (2010) (noting that "[t]he contact with the victim in violation of the protective order must also be without the consent of the other person for the purpose of harassing and intimidating him," and holding that a single bond violation alone cannot form the basis of the crime of aggravated stalking (citation and punctuation omitted)); Wright v. State, 292 Ga. App. 673, 676 ( 665 SE2d 374) (2008) (reversing defendant's conviction on aggravated stalking in part because there was "no evidence that [the alleged victim] was in reasonable fear for her safety").
As discussed supra, both Turnage and Penton knew by the time they called the police that Kasper's actions were not directed at them, but rather were motivated by her legitimate need to pick up her children from their designated bus stop. Both men also denied that her presence placed them in fear or intimidated them in any way, and, therefore, they had no reason to believe that her walking past them constituted aggravated stalking. It follows, then, that any argument that probable cause existed for Kasper's arrest is wholly without merit.
Appellants argue further that the trial court erred by allowing the magistrate judge who dismissed the warrant to testify as to her finding that probable cause was lacking. We need not consider the merits of this argument, however, because not only was it waived by Appellants' acquiescence to the admission of the judge's testimony, but the testimony was also cumulative of the evidence already in the record. See, e.g., Ahmed v. Clark, 301 Ga. App. 426, 428 ( 688 SE2d 361) (2009) ("Acquiescence deprives [a party] of the right to complain further." (citation, punctuation and footnote omitted)); Teems v. Bates, 300 Ga. App. 70, 79 (3) ( 684 SE2d 662) (2009) (concluding that the admission of evidence is harmless when cumulative of other evidence admitted without objection).
(c) Intentional Infliction of Emotional Distress. To prevail on her claim of intentional infliction of emotional distress, Kasper was required to prove that the Appellants 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." Put another way, a case of intentional infliction of emotional distress is one where, generally speaking, "the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!'" And while some conduct may not rise to the requisite level of outrageousness and egregiousness as a matter of law, "[o]nce 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."
See, e.g., Northside Hosp. v. Ruotanen, 246 Ga. App. 433, 435 ( 541 SE2d 66) (2000); Troncalli v. Jones, 237 Ga. App. 10, 14-15 (3) ( 514 SE2d 478) (1999).
Gordon v. Frost, 193 Ga. App. 517, 521 (1) ( 388 SE2d 362) (1989) (citation, punctuation and emphasis omitted); see also Troncalli, 237 Ga. App. at 15 (3) (noting that "mere tasteless, rude or insulting social conduct will not give rise to such a claim" (citation and punctuation omitted)).
Biven Software, Inc. v. Newman, 222 Ga. App. 112, 114 (1) ( 473 SE2d 527) (1996) (citation and punctuation omitted).
See, e.g., Biven Software, 222 Ga. App. at 114 (1) (holding that evidence that employer spoke to employee "in a rude tone and condescending manner, belittled her, was critical of her work, and imposed unreasonable deadlines" was insufficient to support a claim for intentional infliction of emotional distress).
Gordon, 193 Ga. App. at 521 (1) (citation omitted); see also Yarbray v. S. Bell Tel. Tel. Co., 261 Ga. 703, 706 (2) ( 409 SE2d 835) (1991) (same).
This case was proper for jury resolution, and the evidence supports the jury's finding of liability. Appellants' concerted effort to photograph and instigate Kasper's arrest on felony charges and incarceration without bail — knowing that her intended purpose was to pick up her children from their designated bus stop and that she did nothing to provoke them in any way — could be considered by a jury to be extreme and outrageous conduct. Likewise, the jury could have inferred from the evidence presented that the Appellants' prior conduct and harassment of Kasper resulted in a neighborhood gathering outside of her home on the day of her arrest (during which Penton took pictures, gave high-fives, and declared to those in attendance that "we got her . . . [s]he is not getting out this time"), and that this public humiliation was, in and of itself, sufficient to constitute intentional infliction of emotional distress. Finally, the fact that Kasper was booked into the general jail population, where she spent two weeks incarcerated and away from her husband and two children, would "naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress." It follows, then, that the Appellants' conduct surrounding Kasper's arrest showed such "malicious purpose [and] wanton disregard of [Kasper's] rights," so as to justify the jury's verdict in her favor.
Wal-Mart Stores v. Johnson, 249 Ga. App. 84, 87 (3) ( 547 SE2d 320) (2001) (holding that defendant's insistence that plaintiff be arrested and prosecuted despite having evidence that she did not commit a crime was sufficient to support a claim), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326 ( 672 SE2d 7) (2008); K-Mart Corp. v. Lovett, 241 Ga. App. 26, 29 (3) ( 525 SE2d 751) (1999) (same), abrogated on other grounds, Golden Peanut Co. v. Bass, 249 Ga. App. 224 ( 547 SE2d 637) (2001); Gordon, 193 Ga. App. at 518-22 (1) (concluding that evidence of defendant's "malicious purpose or . . . wanton disregard" of plaintiff's rights when having her arrested supported claim).
Cf. State Soil Water Conservation Comm'n v. Stricklett, 252 Ga. App. 430, 437 ( 555 SE2d 800) (2001) (demand that homeowners remove recently-constructed residence, despite the existence of lesser remedies and fact that no action had been taken against similar residences encroaching on easements at other dams, which was possibly fueled by political retribution, "could be construed by a jury as reckless conduct of an extreme and outrageous nature which caused [homeowners] severe emotional distress"); Fleming v. U-Haul Co. of Ga., 246 Ga. App. 681, 686 (5) ( 541 SE2d 75) (2000) (holding that "a rational and impartial jury could decide that it is both atrocious and utterly intolerable in a civilized society for the lessor of a valuable motor vehicle to demand the arrest of its lessee for conversion, simply because the lessee did not return the vehicle to the designated place at the designated time and did not return to claim a cash deposit").
Gordon, 193 Ga. App. at 520-21 (1) (emphasis omitted) (concluding that the eight or nine hours plaintiff spent in jail would naturally give rise to those emotions necessary to support a claim); see also Edwards v. Sabat, 263 Ga. App. 852, 853 (2) ( 589 SE2d 618) (2003) (illustrating harassing behavior sufficient to sustain a claim).
Gordon, 193 Ga. App. at 521 (1) (citation omitted).
(d) Defamation. Under Georgia law, slander or oral defamation is actionable where a party "imput[es] to another a crime punishable by law." Contrary to Appellants' assertion, a statement that wrongfully imputes a crime to another is deemed slanderous per se, from which damages are inferred to flow, and requires no showing of special damages.
OCGA § 51-5-4 (a) (1).
OCGA § 51-5-4 (b); Wolff v. Middlebrooks, 256 Ga. App. 268, 270 (1) ( 568 SE2d 88) (2002).
(i) Turnage's statement to Kasper's neighbor that Kasper was a known drug user, a claim which Turnage himself admitted that he had no evidence to support, imputed to her a crime punishable by law, and thus alone was sufficient to serve as the basis for her claim of slander per se. Moreover, Kasper not only denied the veracity of Turnage's statement, but she also presented expert testimony supporting her denial.
OCGA § 51-5-4 (a) (1); King v. Masson, 148 Ga. App. 229, 231 (1) (B) ( 251 SE2d 107) (1978) (affirming jury verdict in favor of plaintiff based upon defendant's slanderous statement that plaintiff was "a dope addict" and "on drugs"); see also Ferman v. Bailey, 292 Ga. App. 288, 292 (3) ( 664 SE2d 285) (2008) (reasoning that defendant's assertion that plaintiff filed a false police report supported a claim for defamation); Wolff, 256 Ga. App. at 270 (1) (affirming jury's finding of liability based upon defendant's statement that plaintiff was involved in the crime of adultery or fornication); Davidson v. Walter, 93 Ga. App. 290, 293 (2) ( 91 SE2d 520) (1956) (holding that plaintiff set forth a viable slander action based upon defendant's false statement that plaintiff had committed theft).
Turnage's claim that he is immune from liability because Kasper "invited" the slander is likewise without merit. While it is true that there can be no recovery for "invited" defamation, the record does not support Turnage's assertion that Kasper's neighbor engaged him solely for the purpose of inviting his slanderous statements. Although the neighbor told Kasper's husband that she would record any conversations she had with Appellants "if the opportunity came about," Turnage admitted that he first approached and was eager to speak with the neighbor about "what [was] going on" with the Kaspers, and was told that she was not interested in speaking with him. It was only after Turnage nearly hit her grandson with a golf cart that she invited him over to discuss that incident, at which time he immediately began the conversation with "[t]his is what I wanted to bring you a while ago," as he handed her a newspaper clipping reporting Kasper's arrest. He then delivered a lengthy tirade disparaging Kasper, during which he interspersed various statements expressing his eagerness and previous efforts to share with her his opinions about Kasper. Under these circumstances, the record belies Turnage's argument that the defamation was invited and supports the jury's finding of liability as to Turnage on Kasper's defamation claim.
See, e.g., Beck v. Oden, 64 Ga. App. 407, 411 ( 13 SE2d 468) (1941) ("Under the maxim `Volenti non fit injuria' (meaning that to which a person assents is not in law an injury), the plaintiff can not complain where, as here, it is shown that he in fact invited or brought upon himself what he claims is a defamation, made to one who had been placed, as it were, in his own shoes."); Terrell v. Holmes, 226 Ga. App. 341, 343-44 (2) ( 487 SE2d 6) (1997) (applying defense to a claim of slander); Ga. Power Co. v. Busbin, 249 Ga. 180, 181 (1) ( 289 SE2d 514) (1982) (applying defense to a claim of libel); King, 148 Ga. App. at 230-31 (1) (A) (applying defense to a claim of slander).
See OCGA § 51-5-4 (a) (1); King, 148 Ga. App. at 231 (1) (B); see also Ferman, 292 Ga. App. at 292 (3); Wolff, 256 Ga. App. at 270 (1); Davidson, 93 Ga. App. at 293.
(ii) Nevertheless, we agree with Penton that the jury's finding of liability on the claim of defamation cannot be sustained against him. Kasper's claim was based upon the allegation that Penton engaged in a conspiracy with Turnage to slander her. While it is true that a person who has not spoken slanderous words may be held liable for them if they were uttered by another in furtherance of a conspiracy to which he was a party, there must be a showing that (1) both parties were present when the slanderous words were uttered, and (2) the slanderous words spoken by one party was done with the consent of the other party and in furtherance of a common design and purpose.
See, e.g., Roberts v. Lane, 210 Ga. App. 10, 11-12 (1) ( 435 SE2d 227) (1993); Jordan v. Hancock, 91 Ga. App. 467, 472 (2) ( 86 SE2d 11) (1955) (same).
Here, it is undisputed that Penton was not present when Turnage made the slanderous remarks underlying Kasper's defamation claim. Nor is there any evidence to suggest that Penton directed or consented to Turnage's remarks to the neighbor, or that he actually or tacitly entered into an agreement with Turnage to slander Kasper during the particular incident in question. Thus, although the record is replete with evidence of Penton's general disdain for Kasper, there is no evidence to suggest that he engaged in a conspiracy with Turnage as to the subject encounter. It follows, then, that the trial court erred in denying Penton's motion for directed verdict on the defamation claim against him.
See, e.g., Roberts, 210 Ga. App. at 11-12 (1); cf. Smith v. Trust Co. Bank, 215 Ga. App. 413, 417 (2) ( 450 SE2d 866) (1994) (holding that employer is not liable for slanderous utterances of its employees without evidence that the employer expressly directed or authorized its employees to slander plaintiff).
(iii) Moreover, because we are unable to determine what portion of the defamation award the jury intended to impose upon Turnage alone, as opposed to the acts or intentions of Penton, we must reverse that portion of the award. Turnage is entitled to a new trial, solely on the issue of damages, as to this claim.
See, e.g., Roberts, 210 Ga. App. at 13 (3).
2. Appellants further contend that Kasper's recovery on both her claim for malicious prosecution and intentional infliction of emotional distress constitutes a double recovery. We disagree.
Although Appellants did not object to the form of the verdict at the time it was rendered, the issue of whether a verdict improperly represents a double recovery cannot be waived by failing to raise it in the trial court. See, e.g., City of Roswell v. Bolton, 271 Ga. App. 1, 8 (5) ( 608 SE2d 659) (2004) (recognizing that "a claim that a verdict was an impermissible double recovery as a matter of law is an exception" to the general rule that arguments made for the first time on appeal will not be considered (citations omitted)); see also Nalley Northside Chevrolet v. Herring, 215 Ga. App. 185, 188 (5) ( 450 SE2d 452) (1994) (same).
The Georgia Constitution provides that the right to a jury trial in this state "shall remain inviolate," and we have repeatedly held that a jury verdict is only to be disturbed in extraordinary circumstances (i.e., when there is no evidence to support it). Nevertheless, our state's common law and public policy have "always prohibited a plaintiff from a double recovery of damages." Indeed, a plaintiff is only entitled to one recovery and satisfaction of damages, "because such recovery and satisfaction is deemed to make the plaintiff whole." Thus, if two separate causes of action provide a legal theory for compensating one injury, only one recovery may be obtained by the plaintiff. It is only when the second cause of action entitles the plaintiff to recover for an injury separate and distinct from the injury compensated by the award for the first cause of action — or at least for an additional component of injury not covered by the first cause of action — that additional damages may be awarded by the jury.
Ga. Const. Art. I, Sec. I, Par. XI (a).
See, e.g., First Support Servs., Inc. v. Trevino, 288 Ga. App. 850, 851 ( 655 SE2d 627) (2007).
Ga. Ne. R. Co. v. Lusk, 277 Ga. 245, 246 (1) ( 587 SE2d 643) (2003) (citations omitted); see also Am. S. Ins. Group v. Goldstein, 291 Ga. App. 1, 6 (2) (a) ( 660 SE2d 810) (2008) (same).
Lusk, 277 Ga. at 246 (1) (citations omitted); see also Goldstein, 291 Ga. App. at 6 (2) (a).
Lusk, 277 Ga. at 246 (1) ("The different means of measuring damages are not to be so applied as to give double damages for the same thing." (citation and punctuation omitted)); Munford, Inc. v. Anglin, 174 Ga. App. 290, 293 (2) ( 329 SE2d 526) (1985) ("If there is substantial identity of wrong (which necessarily includes identity of the right violated), there is substantial identity of cause of action." (citation and punctuation omitted)).
Lusk, 277 Ga. at 246 (1); Hammond v. City of Warner Robins, 224 Ga. App. 684, 693 (2) ( 482 SE2d 422) (1997).
In considering whether the jury's separate damage awards for malicious prosecution and intentional infliction of emotional distress constitute a double recovery under Georgia law, we begin by noting that our analysis of this issue is tempered by the well-established (and sacrosanct) principle that "after rendition of a verdict, all the evidence and every presumption and inference arising therefrom, must be construed most favorably towards upholding the verdict." Thus, if it is possible for us to construe the evidence presented at trial in a manner that would allow a reasonable jury to issue separate damage awards for malicious prosecution and intentional infliction of emotional distress, and avoid the finding of a double recovery, it is our duty to do so.
Esprit Log Timber Frame Homes v. Wilcox, 302 Ga. App. 550, 550 ( 691 SE2d 344) (2010).
See, e.g., DeCelles v. Morgan Cleaners Laundry, 261 Ga. App. 690, 693 ( 583 SE2d 462) (2003) (rejecting claim of double recovery, and in doing so reasoning, "[a]lthough the jury could have concluded [plaintiff] was fully compensated by the purchase price for use of its trade name, there was evidence to the contrary which supported the award of additional compensation for [defendant's] continuing infringement on the trade name while refusing to comply with the processing agreement. The evidence must be construed to uphold the jury's verdict" (emphasis supplied)); Foxchase, LLLP v. Cliatt, 254 Ga. App. 239, 242 (5) ( 562 SE2d 221) (2002) (rejecting claim of double recovery, and in doing so reasoning, "Here, it is possible to construe the verdicts as properly apportioning damages against the defendants in their various capacities. Absent any showing to the contrary, we find that the trial court correctly construed the verdict" (emphasis supplied)); cf. City of Atlanta v. Landmark Envtl. Indus., 272 Ga. App. 732, 739-740 ( 613 SE2d 131) (2005) (holding that jury verdict could not be upheld "[w]ithout the specifics of the jury's calculations," and that prevailing party's attempt to calculate the "market value of the business" were "mere speculation and wholly unsupported by any evidence"); City of Roswell, 271 Ga. App. at 9 ("We can only conclude that the evidence of diminution of value of [appellee's] property applied to the property as a whole and that the jury's award for diminution in value to [plaintiff's] `property' also applied to the property as a whole. It follows the jury awarded [plaintiff] damages for the loss in fair market value caused by the flooding of the stream bank as well as the cost to repair his property so as to alleviate the flooding, thus making him twice whole." (emphasis supplied)).
At the outset of our analysis, we note that the scope of our factual inquiry is exceedingly narrow. In casting and prosecuting her claims, Kasper sought damages only for Appellants' conduct during the bus-stop incident and the actions they took in connection with her arrest and incarceration. Her reasons for doing so are understandable. As the factual narrative of this unfortunate and disturbing saga demonstrates, Kasper has also been accused of offensive and inappropriate behavior that is altogether unbecoming. In cabining in the factual parameters of her malicious-prosecution and intentional-infliction-of-emotional distress claims as she did, however, Kasper came perilously close to having them overlap to the point where a double recovery might be presumed.
In this respect, it does not help that Kasper seemingly posited inconsistent arguments on appeal. On the one hand, Kasper argues that she only sought damages for the bus-stop incident and the events surrounding her arrest and incarceration, and on the other hand she contends that "[t]he damages for the intentional infliction of emotional distress went beyond the malicious prosecution and included the behavior of the [Appellants] in ostracizing and continually harassing the Kaspers." Suffice it to say, Kasper cannot have it both ways.
In any event, the question before us remains the same: Is there any evidence to support the jury's separate damage awards against the Appellants for malicious prosecution and intentional infliction of emotional distress? For the reasons that follow, we believe such evidence exists.
To begin with, the elements of proof required for malicious prosecution and intentional infliction of emotional distress are different. As previously discussed, in order to prevail on a claim for malicious prosecution, a plaintiff must show that the prosecution was (1) criminal in nature, (2) instigated without probable cause, (3) malicious in nature, (4) done pursuant to a valid warrant, accusation, or summons, (5) terminated favorably to the plaintiff, and (6) damaging to the plaintiff. A claim for intentional infliction of emotional distress, on the other hand, requires proof that (1) the defendant's conduct was intentional or reckless, (2) the defendant's conduct was extreme and outrageous, (3) there exists a causal connection between the wrongful conduct and the emotional distress, and (4) the distress was severe.
See, e.g., Blackford, 264 Ga. at 613.
See, e.g., Cook v. Covington Credit of Ga., Inc., 290 Ga. App. 825, 827-28 ( 660 SE2d 855) (2008).
Nevertheless, it is likewise true, as this case demonstrates, that certain conduct can support both a claim for malicious prosecution and a claim for intentional infliction of emotional distress. Moreover, the torts of malicious prosecution and intentional infliction of emotional distress both provide for the recovery of damages for "emotional distress." For this reason, the jury's separate damage awards for malicious prosecution and intentional infliction of emotional distress can only be upheld if the factual parameters of Kasper's claims demonstrate that she suffered separate and distinct injuries.
See Restatement (Second) of Torts § 670 (1977) ("When the essential elements of a cause of action for malicious prosecution have been established, the plaintiff is entitled to recover damages for (a) the harm to his reputation resulting from the accusation brought against him, and (b) the emotional distress resulting from the bringing of the proceedings" (emphasis supplied)).
In applying the limited set of facts to the foregoing elements of proof, we conclude that there was evidence from which the jury could have found the Appellants liable for the separate and distinct injuries of malicious prosecution and intentional infliction of emotional distress as a result of the events surrounding Kasper's arrest, prosecution, and incarceration.
Specifically, the jury could have concluded that the Appellants committed the tort of malicious prosecution against Kasper due to the following: (1) Turnage's decision to go to the police station the day after the bus-stop incident for the explicit purpose of having Kasper arrested; (2) Turnage demanding that the police officer — who declined the day before to take any action against Kasper — be pulled from his patrol duties to revisit the matter; (3) Turnage adamantly demanding that the officer issue an arrest warrant against Kasper for aggravated stalking; (4) Penton's furnishing of the photograph and audio recording he procured during the bus-stop incident for the explicit purpose of having Kasper arrested; (5) Turnage and Penton's decision to press for Kasper to be arrested for aggravated stalking for walking past them, even after they knew that her purpose in doing so was to pick up her children from their designated bus stop; (6) Turnage and Penton's knowledge and discussion of the fact that Kasper would not be eligible to bond out of jail if she were arrested on an aggravated-stalking charge; (7) the issuance of a warrant for Kasper's arrest; (8) Kasper's subsequent arrest and incarceration; (9) the magistrate's conclusion that there was no probable cause for aggravated stalking and dismissal of the warrant; and (10) Kasper's testimony about the deplorable conditions of the jail during her two-week imprisonment and the severe emotional strain her incarceration placed on her.
And while it is certainly true that the foregoing evidence could also support Kasper's broader claim of intentional infliction of emotional distress (as noted supra), there remains other evidence sufficient to support the jury's separate damage award on this cause of action. Specifically, the jury could have concluded that the Appellants intentionally inflicted emotional distress on Kasper by (1) placing Kasper in fear of being arrested for walking to the bus stop to meet her children by intentionally placing themselves in her path (knowing that she had no alternate route); (2) attempting to provoke Kasper into violating her bond conditions by advancing toward her as she walked (i.e., inching toward the sidewalk as she approached, cursing at her, and taking her photograph in a paparazzi-esque manner) — the result of which would be, and ultimately was, her incarceration; (3) orchestrating (directly or indirectly) the gathering of a crowd outside of Kasper's house during her arrest; (4) encouraging (directly or indirectly) those in attendance to celebrate Kasper's arrest (even though they knew she was innocent and had not committed the crime of aggravated stalking); and (5) participating in the public humiliation of Kasper in front of her neighbors, family, and friends.
We note that the Appellants have not raised, and we therefore do not consider, whether the First Amendment might have afforded the Appellants any relief to Kasper's claims.
In upholding the jury's separate awards for malicious prosecution and intentional infliction of emotional distress, we recognize that the evidence for the former is arguably stronger than the latter. Nonetheless, the jury determined that Kasper was entitled to damages for both malicious prosecution and intentional infliction of emotional distress, and in reviewing this aspect of its verdict on appeal we are not permitted to substitute our judgment for that of the jury. As we have repeatedly emphasized, "[p]resumptions favor the validity of verdicts and a construction, if possible, will be given which will uphold them." And after carefully examining the testimony and evidence presented at trial, we conclude that, under the "any evidence" standard of review, it is possible to construe the evidence presented at trial in a manner that upholds the jury's decision to award Kasper separate and distinct damages for malicious prosecution and intentional infliction of emotional distress. For all of these reasons, we hold that the jury's separate awards of malicious prosecution and intentional infliction of emotional distress do not constitute an impermissible double recovery under Georgia law.
Turner Broad. Sys., Inc., 303 Ga. App. at 612 ("Our role is not to enter the jury box. The jury made its award in its enlightened conscience and based upon the evidence (presented). Thus, as the trial court declined to disturb the jury's verdict, we likewise decline to find error." (citation and punctuation omitted)).
Esprit Log and Timber Frame Homes, 302 Ga. App. at 554-55 (citation and punctuation omitted); see also Se. Sec. Ins. Co. v. Hotle, 222 Ga. App. 161, 164 (1) (e) ( 473 SE2d 256) (1996) (same).
See Cline v. Union County, Iowa, 182 FSupp.2d 791, 799 (S.D. Iowa 2001) (holding that plaintiff seeking to prevail on a claim for intentional infliction of emotional distress had generated fact questions sufficient to preclude summary adjudication concerning "whether the circumstances, including the time, place and publicity surrounding Cline's alleged false arrest and malicious prosecution, resulted in humiliation, worry, and shame sufficient to constitute severe or extreme emotional distress").
See, e.g., Alternative Health Care Sys., Inc. v. McCown, 237 Ga. App. 355, 356 ( 514 SE2d 691) (1999) (holding that a "jury may award different measures of damages on multiple claims if the evidence establishes several distinct torts").
Having concluded that at least a portion of Kasper's damage award may be improper (i.e., that portion of her defamation award potentially attributed to Penton), we are compelled to reverse the judgment on that claim and remand for a new trial solely on the issue of damages against Turnage for his defamation of Kasper. We further reverse the defamation judgment entered against Penton, and affirm the judgment in all other respects.
Judgment affirmed in part and reversed in part, and case remanded. Barnes, P. J., and Blackwell, J., concur.