FIFTH DIVISION

MCFADDEN, C. J.,

RICKMAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS 

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS

COURT. ALL FILINGS MUST BE SUBMITTED WITHIN

THE TIMES SET BY OUR COURT RULES.

June 25, 2021

In the Court of Appeals of Georgia

A21A0320. WOODRUM, et al. v. GEORGIA FARM BUREAU

MUTUAL INSURANCE COMPANY.

RICKMAN, Presiding Judge.

In the second appearance of this case before our Court, William E. Woodrum,

Jr. and Kathy S. Woodrum appeal the trial court’s grant of summary judgment to

Georgia Farm Bureau Mutual Insurance Company on their breach of contract claim

in which they seek compensation for diminution in value. The Woodrums contend,

inter alia, that the trial court erred in granting summary judgment because genuine

issues of material fact remain as to whether diminution in value was assessed as part

of the appraisal process and included in the appraisal award. For reasons that follow,

we reverse.
“On appealfromthe grant of summary judgment, thisCourt conducts a de novo

review of the evidence to determine whether there is a genuine issue of material fact

and whether the undisputed facts, viewed in the light most favorable to the

nonmoving party, warrant judgment as a matter of law.” (Citation and punctuation

omitted.) Cline v. Allstate Property & Cas. Ins., 354 Ga. App. 415, 415 (841 SE2d

63) (2020). In our prior appeal, we set out the facts in that light as well as the prior

procedural history:

[D]uring a thunderstorm on July 5, 2012, a large tree fell onto the roof

of William and Kathy Woodrum’s house, causing significant damage to

the house. The next day, the Woodrums reported the damage to their

insurer, Georgia Farm Bureau Mutual Insurance Company. On

November 7, 2012, after the Woodrums and Georgia Farm Bureau were

unable to agree upon the amount of the loss, the Woodrums invoked the

appraisal clause of the insurance policy. That clause provided:

If you[, the Woodrums,] and we[, Georgia Farm Bureau,] fail to agree

on the amount of loss, either may demand in writing an appraisal of the

loss. In this event, each party will choose a competent appraiser within

20 days after receiving a written request from the other. The two

appraisers will choose an umpire. If they cannot agree upon an umpire

within 15 days, you or we may request that the choice be made by a

judge of a court of record in the state where the residence premises is

located. The appraisers will separately set the amount of the loss. If the

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appraisers submit a written report of an agreement to us, the amount

agreed upon will be the amount of loss. If they fail to agree, they will

submit their differences to the umpire. A decision agreed to by any two

will set the amount of loss.

(Punctuation omitted.) On February 5, 2013, pursuant to the appraisal

process, an award wasissued and agreed to by the Woodrums’ appraiser

and the appointed umpire. Georgia Farm Bureau made payment of the

award to the Woodrums.

The Woodrumssubsequently broughtsuit against GeorgiaFarmBureau,

seeking compensation for diminution in value. The complaint included

countsfor breach of contract and breach of an implied duty of good faith

and fair dealing. The breach of contract claim was based on allegations

that the fallen tree had caused a crack in the slab foundation of the

house, that the value of the house was diminished by the cracked

foundation, that such diminished value was a covered loss under the

policy that was not included in the appraisal award, and that Georgia

Farm Bureau had failed to pay for that diminished value. In support of

the claim, the Woodrums filed the affidavit of George Hall, the

contractor who had repaired the Woodrums’ house and who opined that

the value of the house was diminished by the foundation being cracked.

During a subsequent deposition, Hall gave his opinion that the house

had lost 25 percent of its value due to the cracked foundation.

Georgia FarmBureau filed a motion to exclude Hall as an expert witness

and a motion for summary judgment. On March 24, 2017, the trial court

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entered an order granting the motion to exclude Hall’s testimony as an

expert regarding the diminution in value of the Woodrums’ property. In

that same order, the trial court also excluded Hall’s testimony as a lay

witness giving an opinion as to value. On that same date, the trial court

issued a separate order granting the insurance company’s motion for

summary judgment on both of the Woodrums’ claims. As to the breach

of contract claim, the court found that without Hall’s excluded

testimony, there was no other evidence that the diminution in value of

the property was not included in the amount of loss determined under

the appraisal clause. As to the claim for breach of implied duty of good

faith and fair dealing, the court found that it could not be maintained

because there is no such independent cause of action apart from the

breach of contract claim, which had already been disposed of on

summary judgment. 

Woodrum v. Georgia Farm Bureau Mut. Ins. Co., 347 Ga. App. 89, 89-90 (815 SE2d

650) (2018) (“Woodrum I”).

In Woodrum I, we held that the trial court abused its discretion in finding that

Hall could not offer his opinion of value as a lay witness and reversed the trial court’s

order excluding that testimony. Id. at 93-94 (1) (b). Based on that holding, we also

reversed the grant of summary judgment on the breach of contract claim because we

concluded that “there is, contrary to the trial court’s finding, some evidence creating

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a genuine issue of material fact as to the diminished value of the house.” Id. at 94 (2)

(a).

When the case returned to the trial court, Georgia Farm Bureau filed a renewed

motion for summary judgment based on the existing record. In that motion, Georgia

Farm Bureau asserted that the appraisal award constituted full and final payment of

the loss, including any diminution in value. The trial court granted the motion on that

ground, and the Woodrums appeal. 

1. Initially, the Woodrums contend that the trial court violated Woodrum I,

which they argue implicitly directed the trial court that summary judgment was not

appropriate in this case. 

Under the law of the case doctrine, “any ruling by the Supreme Court or the

Court of Appeals in a case shall be binding in allsubsequent proceedings in that case

in the lower court and in the Supreme Court or the Court of Appeals as the case may

be.” OCGA § 9-11-60 (h). “But the doctrine applies only to actual decisions, not to

issues raised but never ruled upon.” (Citation and punctuation omitted.) Sovereign

Healthcare v. Mariner Health Care Mgmt., 329 Ga. App. 782, 785 (1) (a) (766 SE2d

172) (2014); see also Hicks v. McGee, 289 Ga. 573, 579 (2) (713 SE2d 841) (2011)

(law of the case rule does not encompass an “implied” ruling);Currid v. DeKalb State

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Court Probation Dept., 285 Ga. 184, 186, n.5 (674 SE2d 894) (2009) (rule does not

apply without an express ruling on the issue). In Woodrum I, we concluded that

summary judgment was not appropriate on the breach of contract claim because there

was some evidence of diminution in value, but we did not determine whether

diminution in value was assessed as part of the appraisal process. Thus, we did not

rule on the issue presented here, and the law of the case rule did not preclude the trial

court from addressing it. See Sovereign Healthcare, 329 Ga. App. at 785 (1) (a). 

2. The Woodrums next contend that genuine issues of material fact remain as

to whether diminution in value was assessed as part of the appraisal process engaged

in by the parties.

Summary judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.” OCGA § 9-11-56 (c).

Thus, to prevail on a motion for summary judgment, the moving party

must demonstrate that there is no genuine issue of material fact so that

the party is entitled to judgment as a matter of law. A defendant may do

this by either presenting evidence negating an essential element of the

plaintiff’s claims or establishing from the record an absence of evidence

to support such claims.

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(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 623 (1) (a)

(697 SE2d 779) (2010).

It is undisputed that an appraisal award was issued for the amount of loss

described as “Coverage A-Dwelling,” and that the appraiser for the Woodrums and

the appointed umpire agreed to the award. The appraisal award included a figure for

“Amount of loss/Replacement Cost Value” and a figure for “Actual Cash Value,” but

did not itemize the amounts awarded any further or mention diminution in value.1

The issue of the amount of loss, including any potential diminution in value of

the property, can be settled by the appraisal process. See McGowan v. Progressive

Preferred Ins. Co., 281 Ga. 169, 171-172 (637 SE2d 27) (2006).2 And an award

issued as a result of that process is binding on the parties as to the amount of loss

1 We note that the question of whether diminution in value occurred here, even

after repairs had been made, is one of fact. The parties are bound by our previous

determination that there is at leastsome evidence creating a genuine issue of material

fact as to the diminished value of the house. See Woodrum, 347 Ga. App. at 94 (2)

(a); see also State Farm Mut. Auto. Ins. Co. v. Mabry, 274 Ga. 498, 505 (4) (556

SE2d 114) (2001) (measure of damages for diminution in value is “the difference

between pre-loss value and post-repair value”).

2 As Georgia Farm Bureau points out, “an appraisal clause can only resolve a

disputed issue of value. It cannot be invoked to resolve broader issues of liability.”

McGowan, 281 Ga. 169 at 172. Accordingly, to the extent that Georgia Farm Bureau

challenges its liability for loss associated with diminution in value, the appraisal

clause cannot be invoked to resolve that issue. 

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unless the award is set aside. See Southern Gen. Ins. Co. v. Kent, 187 Ga. App. 496,

497 (1) (370 SE2d 663) (1988). 

The appraisal award issued here does not indicate that any potential diminution

in value was assessed and although the Woodrums have not pointed to any

requirement that the appraisal award be itemized, see Bell v. Liberty Mut. Fire Ins.

Co., 319 Ga. App. 302, 305 (1) (a) (734 SE2d 894) (2012), we cannot assume that

this separate category of loss was included in the award without evidence to support

that assumption. Georgia Farm Bureau has not pointed to any evidence that the

appraisal award included damagesfor diminution in value or that diminution in value

was assessed during the appraisal process. Nor has our review of the record revealed

any such evidence. Accordingly, based on the existing record, the trial court erred in

granting summary judgment to Georgia Farm Bureau on the breach of contract claim

on the ground that the appraisal award constituted full and final payment of the loss,

including any diminution in value.3

3 To the extent that Georgia Farm Bureau contends that the Woodrums were

required to submit a separate claim for diminution in value, we note that if the policy

does not require the insured to assert a right to recover any particular element of

damage, “it stands to reason that the policy does not require a separate claim for

diminution in value.” Mabry, 274 Ga. at 508 (4).

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3. Finally, the Woodrums contend that if their breach of contract claim is

reinstated, it will support their breach of the implied duty of good faith and fair

dealing claim and that it would therefore be error to grant summary judgment on the

latter claim. 

Although the trial court did not address this issue in its order, the court did

grant Georgia Farm Bureau’s renewed motion for summary judgment, which sought

summary judgment on the Woodrums’ claimsfor breach of contract and breach of the

implied duty of good faith and fair dealing. Accordingly, as stated in Woodrum I, the

trial court’s “grant of summary judgment as to the breach of implied duty claim,

premised on an erroneous grant of summary judgment on the breach of contract claim,

must also be reversed.” Woodrum, 347 Ga. App. at 95 (2) (b). 

Judgment reversed. McFadden, C. J., and Senior Appellate Judge Herbert E.

Phipps concur.

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