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MCDANIEL v. OLIVER.
68231.
BENHAM, Judge.
Action on agreement. Walker Superior Court. Before Judge Andrews.
Plaintiff/appellant McDaniel was a pedestrian who suffered a "serious injury" under OCGA 33-34-2 (13) when she was struck by an insured vehicle driven by defendant/appellee Oliver. Appellee's insurer paid appellant the basic $2,500 in medical expense compensation (see OCGA 33-34-4 (a) (2) (A)) and, after the appellate decisions in Jones v. State Farm &c. Ins. Co., 156 Ga. App. 230 (274 SE2d 623) (1980), and Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (300 SE2d 673) (1983), made an additional payment of optional benefits, bringing appellant's medical expense compensation to a total of $13,462.05. Appellant subsequently filed a lawsuit against appellee, and the jury returned a $15,000 verdict in favor of appellant. Thereafter, the trial court, stating that it was acting pursuant to a stipulation entered into by the parties, deducted $13,462.05 from the jury's verdict and entered judgment for appellant in the amount of $1,537.95. Appellant now contends that the trial court should have reduced the verdict by $2,500, the basic no-fault medical expense compensation, and not $13,462.05, a sum which included optional no-fault benefits. See State Farm &c. Ins. Co. v. Chastain, 167 Ga. App. 822 (1) (307 SE2d 717) (1983).
The stipulation which is the source of the controversy is not a part of the appellate record because, according to the parties, it was never taken down by the court reporter. However, the parties have entered into a post-trial stipulation in which they agree that they had previously stipulated that: evidence of medical bills incurred by appellant as a result of the accident could be introduced at trial; the jury would be instructed that, should they find for appellant on liability, such medical expenses were proper items for damages; and "the sum of such medical expenses introduced in evidence would be deducted by the trial court from any verdict in favor of [appellant], before entry of judgment." It is the last provision of the stipulation which is the source of the present controversy.
A stipulation is "any agreement made by attorneys respecting business before the court." 24 EGL 305, Pleading & Practice, 136 (1974). It is binding on the parties and may not be disproved. Goolsby v. Allstate Ins. Co., 130 Ga. App. 881 (1) (204 SE2d 789) (1974). "[P]arties to stipulations and agreements entered into in the course of judicial proceedings will not be permitted to take positions inconsistent therewith in the absence of fraud, duress or mistake." Thompson v. Thompson, 237 Ga. 509 (228 SE2d 886) (1976).
Frank M. Gleason, John W. Davis, Jr., for appellee.
Archibald A. Farrar, Jr., for appellant.
DECIDED SEPTEMBER 14, 1984.
Thursday May 21 18:29 EDT


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