Barge-Wagener Const. Co. v. Morales, BARGE-WAGENER

CourtSupreme Court of Georgia
Writing for the CourtCLARKE; BENHAM
Citation263 Ga. 190,429 S.E.2d 671
PartiesCONSTRUCTION COMPANY et al. v. MORALES et al.
Decision Date24 May 1993
Docket NumberNo. S93A0252,BARGE-WAGENER

Page 671

429 S.E.2d 671
263 Ga. 190
BARGE-WAGENER CONSTRUCTION COMPANY et al.
v.
MORALES et al.
No. S93A0252.
Supreme Court of Georgia.
May 24, 1993.
Reconsideration Denied June 18, 1993.

[263 Ga. 197]

Page 672

Michael D. Thorpe, W. Martin Miles, Kissiah & Associates, Decatur, for Barge-Wagener Const. Co., et al.

Bonny Berry Wilder, Coello & Wilder, Doraville, for Morales, et al.

Janet E. Hill, Sujata Gupta Winfield, Nelson & Hill, P.A., Athens, amicus appellee.

[263 Ga. 190] CLARKE, Chief Justice.

Jose Morales was employed as a construction worker by Appellant Barge-Wagener when he fell to his death from a building on which he was working. His wife and two minor children survive him. They are citizens of Mexico and reside in that nation.

The State Board of Workers' Compensation ("Board") granted $1,000 in benefits to Mr. Morales' widow and minor children as required under O.C.G.A. § 34-9-265(b)(5). 1 The beneficiaries appealed the decision to the superior court alleging that the statute violates the equal protection clause of the Georgia Constitution. The superior court reversed the decision of the Board. Looking to a Florida Supreme Court's invalidation of a nearly identical Florida statute, the [263 Ga. 191] superior court held that alienage is a suspect classification. The court went on to hold that the statute could not withstand the requirements of strict scrutiny under the equal protection clause. Barge-Wagener and its insurer, Argonaut Insurance Company, filed an application for discretionary appeal. We granted the application and now reverse.

This case raises two issues. First, whose rights are at stake, the decedent worker's or the nonresident dependents'? Second, does O.C.G.A. § 34-9-265(b)(5) violate the pertinent party's rights under the Georgia Constitution?

1. The first step of our inquiry is to decide in whom the workers' compensation benefits are vested. Our analysis begins with an examination of the statute. Upon the death of an employee, the employer must pay benefits to the employee's dependents under O.C.G.A. § 34-9-265. Two types of benefits are payable after the death of the employee. The employer must "pay the reasonable expenses of the employee's last sickness and burial expenses not to exceed $5,000. If the employee leaves no dependents, this shall be the only compensation." O.C.G.A. § 34-9-265(b)(1). In addition, the employer must pay to the employee's dependents a portion of "a weekly compensation which is provided for in Code Section 34-9-261." O.C.G.A. § 34-9-265(b)(2).

Death benefits under workers' compensation statutes are separate and distinct from the right to compensation vested in the employee by reason of injury. See International Mercantile Marine Co. v. Lowe, 93 F.2d 663, 115 A.L.R. 896 (2d Cir.), cert. denied, 304 U.S. 565, 58 S.Ct. 948, 82 L.Ed. 1532 (1938). Death benefits do not become part of the estate of the deceased, and are not liable for his debts, "but is the exclusive property of the beneficiaries." 82 AM.JUR.2D, Workers' Compensation § 187, at 184 (1992). The death benefits are intended to compensate the beneficiaries for their injury, which is the loss of support resulting from the death of the deceased worker. This is not merely the survival of the rights of the deceased; the rights to death benefits do not accrue until the death of the worker.

In this respect, the workers' compensation scheme is analogous to the right of recovery under the wrongful death statute, O.C.G.A. §§ 51-4-2 and 51-4-3. Although based on an actionable tort upon the decedent, this statutorily created action is not a property right of the decedent's

Page 673

estate. Boggan v. Boggan, 145 Ga.App. 401, 243 S.E.2d 664 (1978). The wrongful death action, like death benefits under workers' compensation, are rights vested in the surviving family. Dixon v. Ross, 94 Ga.App. 187, 188, 94 S.E.2d 86 (1956).

The sickness and burial expenses are not like death benefits; they are for the benefit of the decedent's estate. As such, these payments are a property right of the decedent employee.

[263 Ga. 192] Given the provisions of the statute, we find that the legislature intended the rights to death benefits to vest in the dependents while making the burial expenses recoverable by the decedent's estate. We conclude that the dependents must assert their own rights to the benefits and cannot rely on the constitutional status of the decedent.

2. The second prong of our inquiry applies the equal protection clause to these two sets of property rights.

The equal protection clause of the Georgia Constitution 2 is "substantially equivalent" to the equal protection clause of the fourteenth amendment of the U.S. Constitution 3. McDaniel v. Thomas, 248 Ga. 632, 638, 285 S.E.2d 156 (1981); Suber v. Bulloch County Bd. of Educ., 722 F.Supp. 736 (S.D.Ga.1989). O.C.G.A. § 34-9-265 clearly discriminates between U.S. and Canadian citizens and residents on the one hand and all other nonresident aliens on the other. The question, however, is whether the discrimination is an unlawful one.

Aliens are treated under United States law under an ascending hierarchy of rights and privileges. The U.S. Constitution "expressly accord[s] differing protection to aliens than to citizens." U.S. v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990). Resident aliens are entitled to important constitutional rights guaranteed under the equal protection and due process clauses. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). The superior court and appellees, however, do not distinguish between aliens within the jurisdiction of the United States and aliens residing outside this country. The United States Supreme Court, however, has been clear that it is the alien's presence within its territorial jurisdiction that gives the Judiciary power to act. Johnson v. Eisentrager, 339 U.S. 763, 770-71, 70 S.Ct. 936, 939-40, 94 L.Ed. 1255 (1950). We hold that the equal protection clause does not extend to nonresident aliens and that the Board correctly awarded death benefits under O.C.G.A. § 34-9-265(b)(5).

Aliens outside the borders of the United States are subject to their own nations' laws and cannot invoke the protections reserved for citizens and residents of the United States. O.C.G.A. § 34-9-265(b)(5) surely discriminates against Mr. Morales's family in Mexico, but it is not unlawful. They must settle for what the legislature of this state is willing to provide.

The superior court agreed with the reasoning of the Florida Supreme Court in a case striking down an almost identical statute. 4 De [263 Ga. 193] Ayala v. Florida Farm Bureau Cas. Ins. Co., 543 So.2d 204 (Fla.1989). The decision of the Florida Court rested on the conclusion that the dependents were asserting the rights of the decedent employee. Since the equal protection clause extends to resident aliens, the denial of full death benefits was held unconstitutional. Our decision turns on the finding that the death benefits are the property of the nonresident dependents. As a result, the dependents cannot assert the resident employee's constitutional rights. See De Ayala, supra at 208-09...

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22 practice notes
  • Stephens v. State, No. S94A1854
    • United States
    • Supreme Court of Georgia
    • March 30, 1995
    ...States in making this determination. Grissom v. Gleason, supra at 375(2), 418 S.E.2d 27. See also Barge-Wagener Constr. Co. v. Morales, 263 Ga. 190, 193(2), 429 S.E.2d 671 (1993); Ambles v. State, 259 Ga. 406, 407(2), 383 S.E.2d 555 (1989). Under that analysis, our focus must be upon whethe......
  • City of Atlanta v. Watson, No. S96G0600
    • United States
    • Georgia Supreme Court
    • September 23, 1996
    ...see Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 1072-73, 30 L.Ed. 220 (1886); Barge-Wagener Construction Co. v. Morales, 263 Ga. 190, 192, 429 S.E.2d 671 6 See Washington v. Davis, 426 U.S. 229, 239-42, 96 S.Ct. 2040, 2047-49,48 L.Ed.2d 597 (1976). 7 Home Materials, Inc. v. Auto......
  • Provident Mut. Life Ins. Co. v. City of Atlanta, No. 1:93-CV-1341-RHH.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • June 27, 1994
    ...Georgia Supreme Court has held that the two equal protection clauses are "substantially equivalent." Barge-Wagener Constr. Co. v. Morales, 263 Ga. 190, 192, 429 S.E.2d 671, cert. denied, ___ U.S. ___, 114 S.Ct. 579, 126 L.Ed.2d 477 The Equal Protection Clause of the Fourteenth Amendment obl......
  • AT & T CORP. v. Sigala, No. S01A0464
    • United States
    • Georgia Supreme Court
    • July 16, 2001
    ...a statute which relegated most non-residents to an inferior legal position was unconstitutional (Barge Wagener Constr. Co. v. Morales, 263 Ga. 190, 429 S.E.2d 671 (1993)), the General Assembly struck that provision from the statute. Ga. Laws 1995, pp. 642, 648. When considering the policy s......
  • Request a trial to view additional results
22 cases
  • Stephens v. State, No. S94A1854
    • United States
    • Supreme Court of Georgia
    • March 30, 1995
    ...States in making this determination. Grissom v. Gleason, supra at 375(2), 418 S.E.2d 27. See also Barge-Wagener Constr. Co. v. Morales, 263 Ga. 190, 193(2), 429 S.E.2d 671 (1993); Ambles v. State, 259 Ga. 406, 407(2), 383 S.E.2d 555 (1989). Under that analysis, our focus must be upon whethe......
  • City of Atlanta v. Watson, No. S96G0600
    • United States
    • Georgia Supreme Court
    • September 23, 1996
    ...see Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 1072-73, 30 L.Ed. 220 (1886); Barge-Wagener Construction Co. v. Morales, 263 Ga. 190, 192, 429 S.E.2d 671 6 See Washington v. Davis, 426 U.S. 229, 239-42, 96 S.Ct. 2040, 2047-49,48 L.Ed.2d 597 (1976). 7 Home Materials, Inc. v. Auto......
  • Provident Mut. Life Ins. Co. v. City of Atlanta, No. 1:93-CV-1341-RHH.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • June 27, 1994
    ...Georgia Supreme Court has held that the two equal protection clauses are "substantially equivalent." Barge-Wagener Constr. Co. v. Morales, 263 Ga. 190, 192, 429 S.E.2d 671, cert. denied, ___ U.S. ___, 114 S.Ct. 579, 126 L.Ed.2d 477 The Equal Protection Clause of the Fourteenth Amendment obl......
  • AT & T CORP. v. Sigala, No. S01A0464
    • United States
    • Georgia Supreme Court
    • July 16, 2001
    ...a statute which relegated most non-residents to an inferior legal position was unconstitutional (Barge Wagener Constr. Co. v. Morales, 263 Ga. 190, 429 S.E.2d 671 (1993)), the General Assembly struck that provision from the statute. Ga. Laws 1995, pp. 642, 648. When considering the policy s......
  • Request a trial to view additional results

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