Archive for August, 2011

Trial Notebook: Exclusive Remedy – Worker’s Compensation

Thursday, August 4th, 2011

A good discussion on exclusive remedy and an inability to sue employer in tort. Bayer Corporation et al. v. Lassiter, 282 Ga. App. 346, 638 S.E.2d 812 (2006).

Wife cannot seek consortium claim from employer where wife has sought the same. See Henderson v. Hercules, Inc., 253 Ga. 685, 324 S.E.2d 453 (1985).

Where an employee is injured outside the state and collects workers’ compensation in this state, workers’ compensation will be his exclusive remedy. See Karimi v. Crowley, 172 Ga. App. 761, 324 S.E.2d 583 (1984).

Exclusive remedy can be a jury issue. See Molton v. Lizella Recreation Club, Inc., 172 Ga. App. 154, 322 S.E.2d 354 (1984).

Since the company picnic where claimant died was not on premises, was a morale booster and was not required, the trial court properly held that the workers’ compensation act was not the exclusive remedy. Pizza Hut of America, Inc. v. Hood , 198 Ga. App. 112, 400 S.E.2d 657 (1990).

Plaintiff killed while working for DOT on Ashland-Warren site. Because DOT had control over the time, manner and method of work, workers’ comp was the only remedy and they could not sue in tort for wrongful death. George v. Ashland-Warren, Inc., 171 Ga. App. 556, 320 S.E.2d 586 (1984). Reversed in George v. Ashland-Warren, Inc., 254 Ga. 95, 326 S.E.2d 744 (1985).

Sheriff is deputy’s employer for purposes of Georgia Workers’ Compensation Act, and does not owe deputy special duty that would render Act inapplicable. Sergeant Teasley was fatally shot by Brian Nichols while on the job. His wife filed suit against various parties, including the Fulton County Sheriff Myron Freeman. The trial court dismissed the suit on the ground that workers’ compensation is the “exclusive remedy” for on the job injuries under Georgia Law. The wide appealed to the Appellate Division and argued that the trial judge erred in finding that Sheriff Freeman was Sergeant Teasley’s employer for purposes of the Act and that no unique duty was owed to Sergeant Teasley that would make the Act’s exclusive remedy provision inapplicable. Appellate Division rejected these arguments and affirmed the trial court. A sheriff would be considered a deputy’s employer under the Georgia Act because of his status as a county officer and the Act’s treatment of counties as employers. The Court of Appeals held that there was no exception to bring this case out of the exclusive remedy of workers’ compensation and Sheriff Freeman owed no unique duty to take this case outside of the Act. Teasley v. Freeman, 305 Ga. App. 1, 699 S.E.2d 39 (2010).

An employer is not protected from tort immunity under the exclusive remedy provision of the Georgia Workers’ Compensation Act if the employee’s claim is not otherwise subject to the Workers’ Compensation Act. Brian Nichols escaped from Fulton County deputies killing Judge Rowland Barnes and others. Additionally he held captive Judge Barnes’ case manager and assistant case manager. They sure the county sheriff and other employees in tort seeking special, general, and punitive damages for false imprisonment, assault, and infliction of emotional distress. Trial court granted sheriff’s motion to dismiss holding that the plaintiff’s exclusive remedy was in workers’ compensation. The Court of Appeals reversed holding that plaintiff’s had not alleged any physical injuries and therefore their claims were not within the scope of the Act. Clarke v. Freeman, 302 Ga. App. 831, 692 S.E.2d 80 (2010).

Workers’ Compensation Act is exclusive remedy for claims of heirs in temporary worker against contractor to whom temporary worker was assigned. In April 200k Boral Bricks, Inc. (BBI) hired Albert Painting Inc. (API) to paint some of the buildings at its Smyrna, Georgia plant. API contracted with Labor Ready to supply temporary workers for the job billing $16.80 per employee, per hour which included workers’ compensation insurance. Sabellona was a temporary employee supplied to API for painting BBI’s plant and on August 14, 2006 he fell through a skylight on the roof and died. His son filed a workers’ compensation claim against Labor Ready which settled for $160,000. His two other children filed a wrongful death suit against API and BBI. Trial court granted API’s motion for summary judgment holding they were protected by O.C.G.A. § 34-9-11(c) of the Act. The exclusive remedy provision prevents an injured employee or his/her dependents from bringing a tort claim against the employer. The Court of Appeals affirmed holding that API was immune from suit. Sabellona v. Albert Painting, Inc., 303 Ga. App. 842, 695 S.E.2d 307 (2010).

Temporary help firm employee killed on premises of company where he was working could not bring third party tort action against the company despite that temporary help firm paid workers’’ compensation benefits because the company was protected by the workers’ compensation exclusive remedy. Rose Marie Cyronis as personal representative of the Estate of Jeffrey C. Cyronis v. Mart Management (decided Janurary 21, 2010).

Cannot File Tort Action if Case is Settled by No Liability Stipulation

O.C.G.A. § 34-9-15: Where a dispute over the applicability of the Workers’ Compensation Act exists but the parties want to settle a claim, the Board is authorized to approve a settlement agreement which contains a “no-liability” stipulation and to enforce any compensation payment agreed to in the settlement. Moreover, where compensation is paid pursuant to a settlement under § 34-9-15, the exclusive remedy provisions of O.C.G.A. § 34-9-11(a) bar a subsequent tort suit by the insured party despite a stipulation in the settlement agreement that there was no liability under the Act. Ridley v. Monroe, 256 Ga. App. 686, 569 S.E.2d 561 (2002); Theesfeld v. Image Electrolysis and Skin Care, Inc., 274 Ga. App. 38, 619 S.E.2d 303 (2005).

Employee of General Contractor Liable

Employee of independent subcontractor, who received workers’ compensation benefits for injuries he sustained during the scope of his employment on the job site when he was accidentally injured by the general contractor’s employee, brought action against the general contractor and its employee seeking damages. The State Court, Cobb County, Tom Cauthorn, J., entered summary judgment in favor of the defendants, and appeal was taken. Long v. Marvin M. Black Co., 163 Ga. App.633, 294 S.E.2d 641, affirmed.

Certiorari was granted. The Supreme Court, Hill, C.J., held that the claim against the general contractor was barred by tort immunity, but the employee was not immune from tort liability because the two employees were not employed by the same employer. Long v. Marvin M. Black Co. 250 Ga. 621, 300 S.E.2d 150 (1983).

Immunity from Suit

A good discussion on the immunity applied for tort law and that tort law does not apply to workers’ compensation cases. See Bayer Corporation et al. v. Lassiter, 282 Ga. App. 346, 638 S.E.2d 812 (2006).

Statutory employer/are immune from suit tort claims based on their potential liability for workers’ compensation benefits. See Warden v. Hoar Construction Company, 269 Ga. 715, 507 S.E.2d 428 (1998). Further this immunity applies even if the general contractor never actually paid any workers’ compensation benefits to the employee. Bossard v. Atlanta Neighborhood Dev. Partnership, 254 Ga. App. 799, 564 S.E.2d 31 (2002).

Immunity from Suit—Tort suit can be made against employer

Misrepresentation by Employer to Treating Doctor about Legality of Chemicals: An employer, who misrepresents to a treating doctor that a certain chemical exposure to a claimant is not harmful when in fact it is, amounts to a misrepresentation that will waive any immunity under the Georgia Workers’ Compensation Act. See, Potts v. UAP-GA, AG Chem, Inc., 227 Ga. App. 841, 490 S.E.2d 432 (1997) Rev’d. by Potts v. UAP-GA, AG Chem, Inc., 270 Ga. 14, 506 S.E.2d 101 (1998).

Research about Contractor’s Relationships

O.C.G.A. § 34-9-11

States that however, that no employee shall be deprived of any right to bring an action against any third-party tort-feasor, other than an employee of the same employer or any person who, pursuant to a contract or agreement with an employer, provides workers’ compensation benefits to an injured employee, notwithstanding the fact that no common law master-servant relationship or contract of employment exists between the injured employee and the person providing the benefits, and other than a construction design professional.

The immunity provided by this subsection shall apply and extend to the business using the service of a temporary help contracting firm, such term is defined in Code Section 34-8-46, or an employee leasing company, as such term is defined in Code Section 34-8-32, when the benefits required by this chapter are provided by either the temporary help contracting firm or the employee leasing company or the business using the services or either such firm or company. A temporary help contracting firm or an employee leasing company shall be deemed to be a statutory employer for the purposes of this chapter.

Paz v. Marvin M. Black Company 200 Ga. App. 607, 408 S.E.2d 807 (1991)

The court reversed the grant of summary judgment for the general contractor’s employees because they did not share in the statutory immunity where they were not employees of the subcontractor.

The general contractor Marvin M. Black Company. We are required by Long v. Marvin M. Black Co., 250 Ga. 621, 300 S.E.2d 150 to reverse the summary judgments granted to the employees of Marvin M. Black Co. Established that HN1(upwards arrow) the liability of the general contractor for workers’ compensation benefits renders it liable for workers compensation benefits as the “statutory employer” of its subcontractor’s employee; but according to the Supreme Court’s decision in Long, Supra, the employees of the general contractor do not share in that statutory immunity, as they are not “employee(s) of the same employer” (O.C.G.A. § 34-9-11) AS Paz.

But plaintiffs assert they have sued each of these individual employees of the general contractor on account of a breach of a specific management or supervisory duty. There is evidence raising an issue of the fact as to there being committed a negligent act in managing supervising or implementing the safety program therefore, we cannot find they have borne their duty as movants to prove they are entitled to judgment as matter of law.