                                 FIFTH DIVISION
                                MCFADDEN, P. J.,
                              RAY and RICKMAN, JJ.

                    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.
                                http://www.gaappeals.us/rules


                                                                    October 24, 2018




In the Court of Appeals of Georgia
 A18A1418. TRAVELERS PROPERTY CASUALTY COMPANY
     OF AMERICA v. SRM GROUP, INC.

      RAY, Judge.

      Travelers Property Casualty Company of America (“Travelers”) filed suit

against SRM Group, Inc. (“SRM”) seeking to recover unpaid premiums due under a

workers compensation insurance policy. In response, SRM asserted counterclaims

against Travelers for breach of contract, breach of duty of good faith and fair dealing,

and attorney fees based on Travelers’ audit of SRM’s employee risk classifications

and subsequent refusal to reclassify those employees, which resulted in a substantial

retroactive increase in the premium. Following a four-day trial, the jury awarded

$174,858.00 in damages to Travelers based on SRM’s failure to pay some of the

alleged increased premium due under the policy. However, the jury found that
Travelers had also breached the contract and acted in bad faith in conducting the audit

and in subsequently refusing to reclassify certain SRM employees. Accordingly, the

jury awarded damages to SRM in the aggregate sum of $174,858.00, which consisted

of $57,858.00 for the breach and $117,000.00 in bad faith attorney fees. Travelers

filed a motion for judgment notwithstanding the verdict or, in the alternative, motion

for new trial. Following a hearing, the trial court denied the motions.

      Travelers appeals, contending that the trial court erred in denying the motion

for judgment notwithstanding the verdict on SRM’s counterclaims for breach of

contract and bad faith attorney fees, or in denying the motion for new trial, based on

(i) the inconsistency of the verdict; (ii) the trial court’s denial of certain motions in

limine; and (iii) the trial court’s refusal to give a requested jury instruction on open

account interest pursuant to OCGA § 7-4-16. For the following reasons, we affirm in

part and reverse in part.

      The record shows that Travelers filed a lawsuit against SRM seeking to recover

damages in the amount of $479,017.541 arising out of SRM’s failure to pay the

increased premium due under a workers compensation policy between the parties.

      1
       This sum included $279,157.00 for the policy period of 05/12/12 to 05/12/13
and $199,860.54 for the renewed policy period of 05/12/13 to 01/01/14. Travelers
cancelled the policy for nonpayment of the premium on January 1, 2014.

                                           2
According to SRM, the premium was twenty times the price that Travelers had

estimated it would be and the increase was the result of an improper classification of

certain SRM employees. Consequently, SRM asserted counterclaims against

Travelers for breach of contract and breach of the covenant of good faith and fair

dealing based on the manner in which Travelers conducted an audit of SRM’s

employee classifications and Travelers’ subsequent refusal to reclassify those

employees. SRM also sought bad faith attorney fees pursuant to OCGA § 13-6-11 as

a result of the breach. Specifically, SRM’s counterclaims for breach allege that

Travelers wrongfully assigned certain job classifications to some of SRM’s

employees and then refused to reclassify these employees, resulting in an unwarranted

increase in the premium owed by SRM.

      The terms of the insurance policy provided that the initial amount of the

premium set forth in the policy was only an estimate and that Travelers reserved the

right to retroactively adjust the premium amount during the policy period after an

audit of SRM’s records. Accordingly, in 2013, Travelers conducted such an audit, and

it issued a premium adjustment notice to SRM indicating an additional premium due

for the policy period from 05/12/12 to 05/12/13 in the amount of $279,157.00. SRM

disputed the retroactive increase in the premium, and the parties were unable to

                                          3
resolve the dispute. On January 1, 2014, Travelers cancelled the policy for SRM’s

nonpayment of the increased premium. Travelers then issued a billing statement to

SRM for the $279,157.00, as well as for the additional amount of $199,860.54 in

unpaid premium for the portion of the renewed policy period from 05/12/13 to

01/01/14.

      During the policy period but before the 2013 audit, SRM was awarded a

contract by the U.S. Department of Homeland Security for the operation and

maintenance of dormitory facilities at the Federal Law Enforcement Training Facility

(“FLETC”) in Brunswick, Georgia. As a result of its 2013 audit, Travelers classified

SRM’s employees that worked at FLETC as “Code 9101-School” employees because

FLETC was a school or training facility for state and federal law enforcement

personnel. However, Suresh Prabhu, who was SRM’s chief executive officer and sole

owner, and John Oxendine, a former insurance commissioner for the State of Georgia

who was qualified as an expert in employee classification for insurance purposes,

both testified at trial that the FLETC workers should have been classified as “9052-

Hotel” employees, which carried a significantly lower premium cost than the “9101-

School” employee classification.



                                         4
      Travelers’ premium increase was also predicated in part on Travelers’ risk

classification of certain logistic specialists employed by SRM who kept track of

inventory and military equipment at various National Guard facilities. As a result of

its 2013 audit, Travelers classified these logistic specialists as “8292-

Warehouse/Storage” employees. However, both Prabhu and Oxendine testified at trial

that the logistic specialists should have been classified as “8810-Clerical” employees,

which carried a lower premium cost to SRM than the “8292-Warehouse/Storage”

employee risk classification.

      Other than the issue of whether SRM had breached the contract by failing to

pay any portion of the retroactive premium increase, the primary focus of the trial was

Travelers’ handling of the 2013 audit and Travelers’ subsequent refusal to reclassify

the above-referenced employees. To that end, Travelers’ auditor, Larry Grasso,

testified that he initiated the employee classification process by reviewing the job

descriptions as they appeared in SRM’s payroll documents that were generated by an

outside payroll company and by referring to insurance trade publications. He testified

that he finalized the employee classification process after having one short

conversation and several follow-up emails with an administrative assistant who

worked in SRM’s head office. Although Grasso testified that an employee’s risk

                                          5
classification depended on his or her particular job requirements and work

environment, he acknowledged that he never visited SRM’s work sites or spoke with

anyone at SRM regarding its employees’ job requirements or work environment.

Rather, Grasso claimed that work site visits and employee interviews were not

necessary because, under the normal auditing process, he would get the required

information from the owner of the business. Notably, however, Grasso testified that

he decided not to contact Prabhu in this case. Furthermore, Grasso’s testimony

seemed to indicate that he harbored a certain level of indignation toward Prabhu

because Prabhu did not meet with him personally during the auditing process.

      At trial, Prabhu testified in great detail as to nature of the work and the tasks

that were performed by its FLETC workers and logistic specialists, which was

consistent with the “hotel” and clerical” employee classifications, respectively.

Prabhu further testified that he provided this information to Travelers, that Travelers

apparently would not consider this information, and that Travelers simply ignored

him both during and after the audit resulting in the retroactive premium increase.

      Although SRM acknowledged at trial that it owed at least some of the

additional amount of the premium, SRM admitted that it continued to pay only the

amounts that were established before the retroactive premium increase.

                                          6
      As a result of SRM’s nonpayment of the increased portion of the premium,

Travelers cancelled the policy. At trial, Prabhu testified that the cancellation of the

policy caused a hardship on SRM’s efforts to find subsequent insurance, which he

needed to continue to maintain his business. Prabhu also testified that the inability to

resolve the employee classification dispute with Travelers and the resulting litigation

forced him to devote all of his time to the litigation instead of attending to SRM’s

business concerns, which has had a negative impact on SRM’s business.

      After considering all of the evidence, the jury returned verdicts for both

Travelers and SRM on their respective claims, awarding damages to each party

which, in effect, resulted in no monetary recovery for either party.

      1. Travelers contends that the trial court erred in denying Travelers’ motion for

judgment notwithstanding the verdict entered in favor of SRM on its counterclaim for

breach in the amount of $57,858.00, arguing that SRM failed to adduce any evidence

of its damages and that the amount of nominal damages awarded was excessive. We

discern no basis for reversal.

      On appeal from the denial of a motion for judgment notwithstanding the

verdict, “we construe the evidence in the light most favorable to the party opposing

the motion, and the standard of review is whether there is any evidence to support the

                                           7
jury’s verdict.” (Citation omitted.) Park v. Nichols, 307 Ga. App. 841, 845 (2) (706

SE2d 698) (2011). Furthermore, a motion for judgment notwithstanding the verdict

should not be granted “unless there is no conflict in the evidence as to any material

issue and the evidence introduced, with all reasonable deductions therefrom, demands

a certain verdict.” (Citation omitted.) Prime Home Properties v. Rockdale County Bd.

of Health, 290 Ga. App. 698, 702 (3) (660 SE2d 44) (2008). “[A] verdict will not be

set aside where the evidence construed in favor of the verdict supports it, however

slightly.” (Citation omitted.) Page v. Will McKnight Const., Inc., 282 Ga. App. 571,

572 (1) (639 SE2d 381) (2006).

      (a) Travelers first argues that it was entitled to judgment notwithstanding the

verdict on SRM’s counterclaim for breach of contract because SRM failed to

establish the amount of its nominal damages. Travelers’ argument lacks merit.

      A plaintiff’s right to recover nominal damages depends only upon
      whether the defendant’s liability has been established. Under the Civil
      Practice Act it is not necessary to pray specifically for general or
      nominal damages in order to present a question for the jury as to
      nominal damages. All that is now necessary is that the plaintiff raise the
      issue during the trial so that it may be presented to the jury.




                                          8
(Citations and punctuation omitted; emphasis in original.) Bishop v. Int’l Paper Co.,

174 Ga. App. 863, 864 (1) (332 SE2d 12) (1985). Furthermore, in order to recover

nominal damages, “[a] showing of actual damages [is] simply not required.”

McEntyre v. Edwards, 261 Ga. App. 843, 845-846 (2) (583 SE2d 889) (2003). Lastly,

OCGA § 13-6-6 provides that “[i]n every case of breach of contract the injured party

has a right to damages, but if there has been no actual damage, the injured party may

recover nominal damages sufficient to cover the costs of bringing the action.”

      Here, although SRM did not introduce any evidence of its damages in terms of

a specific monetary amount, it did provide some evidence that SRM suffered harm

as a result Travelers’ actions. SRM faced difficulties in obtaining subsequent workers

compensation insurance after the cancellation of the Travelers policy, and SRM’s

business was negatively impacted as a result of the time and resources that Prabhu

had to expend as a result of this litigation. Based on the foregoing authority, SRM had

the right to recover nominal damages for successfully bringing its counterclaim for

breach of contract, and it was not required to introduce evidence of its actual

damages.

      (b) Travelers also argues that the jury’s award of $57,858.00 in damages is not

“nominal” because it is such a large amount. However, the law is clear that “nominal”

                                          9
damages may, in fact, be quite large, and an award cannot be set aside simply because

the amount is large, absent evidence of prejudice, bias, or mistake on the part of the

jury. Hilb, Rogal & Hamilton Co. of Atlanta, Inc. v. Holley, 295 Ga. App. 54, 60 (3)

(670 SE2d 874) (2008). Furthermore. “[i]nstead of being restricted to a very small

amount, the sum awarded as nominal damages may, according to circumstances, vary

almost indefinitely.” (Citation omitted.) Wright v. Wilcox, 262 Ga. App. 659, 662 (2)

(586 SE2d 364) (2003).

       Here, the jury had the opportunity to weigh the evidence and determine the

credibility of the witnesses. In so doing, the jury determined that the amount it

awarded to SRM on its counterclaim for breach of contract was appropriate under the

circumstances of this case. There was no evidence to show that the award was the

result of prejudice, bias, or mistake on the part of the jury. Accordingly, the trial court

did not err in denying Travelers’ motion for judgment notwithstanding the verdict on

SRM’s counterclaim for breach of contract on this basis.

       2. Travelers also contends that the trial court erred in denying its motion for

judgment notwithstanding the verdict on SRM’s counterclaim for attorney fees

pursuant to OCGA § 13-6-11 because the request for attorney fees was based on a



                                            10
compulsory counterclaim for breach of contract that was not independent of

Travelers’ claim for breach of contract. We agree.

      “The award of expenses of litigation under OCGA § 13-6-11 can only be

recovered by the plaintiff in an action under the language of the statute; therefore, the

defendant and plaintiff-in-counterclaim cannot recover such damages where there is

a compulsory counterclaim.” (Citations omitted.) Sanders v. Brown, 257 Ga. App.

566, 570 (c) (571 SE2d 1) (2002). However, “if the counterclaim is an independent

claim that either arose separately from the plaintiff’s claim or arose after plaintiff’s

claim, then a plaintiff-in-counterclaim may recover expenses of litigation.” (Citation

omitted.) Id. Accord Byers v. McGuire Props., Inc., 285 Ga. 530, 540 (6) (679 SE2d

1) (2009); Singh v. Sterling United, Inc., 326 Ga. App. 504, 512-513 (4) (756 SE2d

728) (2014).

      Under the Civil Practice Act, “[a] pleading shall state as a counterclaim any

claim which at the time of serving the pleading the pleader has against any opposing

party, if it arises out of the transaction or occurrence that is the subject matter of the

opposing party’s claim[.]” OCGA § 9-11-13 (a). Under this Code section, and

applying Byers, Singh, and Sanders, we conclude that SRM’s counterclaim for breach

of contract upon which it based its attorney fees claim is clearly a compulsory

                                           11
counterclaim, and not an independent claim, because it alleges that Travelers acted

in bad faith with respect to the underlying transactions that form the basis for

Travelers’ breach of contract claim, i.e. – the audit of SRM’s records, the subsequent

billing for the increased premium amount, the cancellation of the policy for

nonpayment of the increased premium, and the resulting claim for breach of contract

based on nonpayment of the increased premium. Accordingly, the trial court erred in

denying Travelers’ motion for judgment notwithstanding the verdict on SRM’s

counterclaim for attorney fees, and the jury’s attorney fee award must be reversed.

      3. Based on our holding in Division 2, we need not address Travelers’ other

enumerations of error pertaining to the award of attorney fees to SRM.

      4. Travelers contends that the trial court erred in denying its motion for new

trial based on the grounds that the verdicts were fatally flawed by virtue of an

intrinsic inconsistency which rendered the verdicts void ab initio. We disagree.

      OCGA § 9-12-4 provides that “[v]erdicts shall have a reasonable intendment

and shall receive a reasonable construction. They shall not be avoided unless from

necessity.” In construing this statute, our Supreme Court has acknowledged that “the

presumptions are in favor of the validity of verdicts, and if possible a construction

will be given which will uphold them. Even if the verdict is . . . susceptible of two

                                         12
constructions, one of which would uphold it and one of which would defeat it, that

which would uphold it is to be applied.” (Citation and punctuation omitted.) Anthony

v. Gator Cochran Construction, Inc., 288 Ga. 79, 80-81 (702 SE2d 139) (2010).

      Here, the jury was called upon to resolve the parties’ interrelated claims arising

out of the same contract. One issue was whether SRM had breached the contract for

failing to pay any amount of the retroactive increase of the premium. The jury found

that SRM had breached the contract in this regard, and the jury awarded damages to

Travelers in amount that the jury apparently determined was the proper amount of the

premium increase for which it was entitled. The other issues for the jury were whether

Travelers had breached the contract by failing to act in good faith in conducting the

audit and in reclassifying SRM’s employees resulting in an exorbitant overcharge for

the increased premium, and, if so, whether SRM was entitled to nominal damages as

a result of Travelers’ failure to act in good faith in resolving the dispute. The jury

found that Travelers had breached the contract in this regard, and it awarded nominal

damages to SRM in an amount that it deemed appropriate. Construing the verdicts in

the light most favorable to uphold their validity, we conclude that the verdicts were

neither inconsistent nor contradictory. Accordingly, the trial court did not err in

denying Travelers’ motion for new trial on this basis.

                                          13
      5. Travelers contends that the trial court erred in denying its motions in limine

which sought to bar SRM’s admission of its subsequent insurer’s endorsements for

workers compensation insurance coverage. Travelers’ argument is without merit.

      One of Travelers’ motions in limine sought the exclusion of any evidence of

risk classifications assigned to SRM employees after the cancellation of the Travelers

policy, arguing that such evidence was not relevant to Travelers’ claim for breach of

contract for nonpayment of the premium. However, SRM sought to admit the

documents as demonstrative exhibits in support of its own claim for breach of

contract to point out the discrepancies between Travelers’ risk classifications of

SRM’s employees with the risk classifications assigned by SRM’s new insurance

company. We conclude that the documents were clearly relevant to the issue of

whether Travelers had breached its duty of good faith and fair dealing in initially

assigning its risk classifications of the SRM employees and in later refusing to

reclassify those employees, because the differing risk classifications would have an

effect on the proper amount of the increase in premium. Thus, the probative value of

such evidence outweighed any potential prejudicial effect.

      Travelers’ other motion in limine sought the exclusion of the same evidence

on hearsay grounds. Immediately prior to trial, and outside the presence of the jury,

                                         14
the trial court held a hearing on the motions in limine. The trial court denied the first

motion in limine that was based on relevancy grounds, and it conditionally denied the

motion in limine that was based on hearsay grounds, provided that SRM could later

authenticate the documents as business records prior to seeking admission of the

documents into evidence.

      During the trial, SRM sought to authenticate and admit the documents at issue

through the testimony of Prabhu, SRM’s chief executive officer and sole owner.

Prabhu testified that he received the insurance documents from its new insurer at or

around the time they were drafted and that he maintained the documents in the

ordinary course of his business because he had to show such documents to

prospective clients to prove that SRM had insurance coverage as a prerequisite to

bidding on contracts, as well as to prove that SRM had insurance coverage to its

existing clients in order to remain in compliance with their contracts. SRM then

moved to admit the documents as being authenticated. When the trial court asked

Travelers’ counsel if there was any objection, Travelers’ counsel replied “No

objection, your Honor.”

      “To preserve an objection upon a specific ground for appeal, the objection on

that specific ground must be made at trial, or else it is waived.” (Citation and

                                           15
punctuation omitted.) Saye v. Provident Life and Acc. Ins. Co., 311 Ga. App. 74, 78

(4) (714 SE2d 614) (2011). Here, as Travelers affirmatively acquiesced in the

admission of the documents at issue, the issue of admissibility has been waived for

the purposes of appellate review.2

      6. In its last enumeration of error, Travelers contends that the trial court erred

in denying its Request for Charge No. 48 seeking open account interest pursuant to

OCGA § 7-4-16. We disagree.

      Travelers argued below that SRM was liable for prejudgment interest, and it

requested a jury instruction on prejudgment interest applicable to open accounts.

Concluding that Travelers was not entitled to prejudgment interest under the

circumstances of this case, the trial court did not give the requested charge to the jury.

      OCGA § 7-4-16 provides, in pertinent part, that “[t]he owner of a commercial

account may charge interest on that portion of a commercial account which has been



      2
         Even if the documents were to be deemed inadmissable under the business
records exception to the hearsay rule, “the admission of hearsay is harmless when it
is cumulative of legally admissible evidence showing the same fact.” (Citation and
punctuation omitted.) Saye, supra at 79 (4). SRM’s expert, the former insurance
commissioner for the State of Georgia, presented testimony concerning the proper
classification of SRM’s employees which was consistent with the classification
contained in the documents at issue.

                                           16
due and payable for 30 days or more[.]” However, there are some circumstances in

which a plaintiff may not seek to recover under an open account theory.

      A suit on open account is available as a simplified procedure to the
      provider of goods and services where the price of such goods or services
      has been agreed upon and where it appears that the plaintiff has fully
      performed its part of the agreement and nothing remains to be done
      except for the other party to make payment. However, when there is a
      dispute that goes to either . . . [the] terms of the contract, what work was
      performed, the quality of performance, or cost, then suit on account is
      not the proper procedure for suit, because there is a factual issue other
      than nonpayment on the account.


(Citation omitted.) Lager’s, LLC v. Palace Laundry, Inc., 247 Ga. App. 260, 264 (2)

(543 SE2d 773) (2000). Accord American Teleconferencing Svcs., Ltd. v. Network

Billing Systems, LLC, 293 Ga. App. 772, 777 (3) (a) (668 SE2d 259) (2008); Watson

v. Sierra Contracting Corp., 226 Ga. App. 21, 27 (b) (485 SE2d 563) (1997).

      Here, SRM hotly contested such issues as Travelers’ good faith performance

under the contract and the amount of increased premium that SRM owed under the

policy based on Travelers’ improper risk classifications of SRM’s employees. As

there were factual issues to be resolved other than the mere nonpayment of the

increased premium, Travelers was not entitled to prejudgment interest under an open


                                          17
account theory of recovery. Accordingly, the trial court did not err in failing to give

Travelers’ requested charge on open account interest.

      For the above reasons, we reverse the trial court’s decision on Travelers’

motion for judgment notwithstanding the verdict only as it pertains to SRM’s

counterclaim for attorney fees pursuant to OCGA § 13-6-11. We affirm the verdict

and judgment below in all other respects.

      Judgment affirmed in part and reversed in part. McFadden, P.J., and Rickman,

J., concur.




                                          18
