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St. Paul Reinsurance Co.9/28/2005
ible for the plaintiff in a tort action to take a position in a garnishment suit later brought against the insurer that was inconsistent with the plaintiff's former allegations in the tort action, since the insurer, who had not been a party to the underlying action, failed to show that it had been unfairly prejudiced by the plaintiff's inconsistency.
St. Paul, the insurer in this case, has likewise failed to show that it was unfairly prejudiced by alleged inconsistencies between the Rosses' position in the garnishment action and the allegations contained in their personal injury complaint against Akhtar. St. Paul could have resolved the coverage issue during the pendency of the personal injury suit, and thus avoid the possibility of being faced with an inconsistent position in a later-filed garnishment suit, by seeking a stay of the personal injury suit and filing a declaratory judgment action. See Richmond v. Georgia Farm Bureau Mutual Insurance Co., 140 Ga. App. 215, 219 (1) (231 SE2d 245) (1976); Yost v. Southeastern Fidelity Ins. Co., 255 Ga. 179, 179-180 (336 SE2d 248) (1985); Georgetown Mortg., Inc. v. OHIC Ins. Co., 267 Ga. App. 318, 319 (599 SE2d 282) (2004).
More importantly, St. Paul had a full and fair opportunity to contest the issue of insurance coverage in the garnishment action. See Ross, 279 Ga. at 94 (noting that a garnishment action "is a process in which the insurer is well protected and may assert that there is no coverage under the policy"). Furthermore, regardless of whether the Rosses asserted an inconsistent position in the garnishment action, St. Paul could still rely on the allegations of the Rosses' personal injury complaint to satisfy its burden of showing the applicability of the assault and battery exclusion and to shift the evidentiary burden to the Rosses. See Bates, 223 Ga. App. at 14 (2). For these reasons, St. Paul cannot point to any unfair prejudice it has suffered as a result of the Rosses purportedly inconsistent positions. Thus, we reject St. Paul's argument that the Rosses were bound in the garnishment action to the specific allegations contained in their underlying personal injury complaint, and St. Paul's corollary claim that the transcript of the evidentiary hearing is irrelevant.
St. Paul also argues that the evidentiary hearing transcript is unnecessary because the record contains the affidavit of Ronald Ross, the only witness who testified at the evidentiary hearing. However, St. Paul overlooks the fact that in addition to the live testimony of Ross, there may have been "stipulations . . . or statements in place by counsel [that] were tendered at the hearing" of which we are unaware that also would affect our review of the case. Gill, 234 Ga. App. at 531 (1) (c). Moreover, nothing prevents a witness from taking the stand at an evidentiary hearing on a traverse and elaborating on his or her affidavit, or in fact contradicting all or part of it. Hence, the mere presence of a witness' affidavit in the record does not solve the problem created by the absence of an evidentiary hearing transcript. See Hipple v. Simpson Paper Co., 234 Ga. App. 516, 518 (3) (507 SE2d 156) (1998) (pointing out that citation to affidavit on appeal "cannot be used to cure the absence of a transcript of proceedings for . . . appellate review") (citation omitted).
Accordingly, we conclude that a transcript of the evidentiary hearing conducted on St. Paul's motion for summary judgment and the Rosses' traverse is essential for resolving whether the assault and battery exclusion applied to the shooting. Because that transcript is absent from the record, we "must presume that the evidence authorized the judgment" entered by the trial court, and are constraine
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