Bell South Telecommunications, Inc. v. Widner

• Decision Date: 03 December 1997
• Docket Number: No. A97A1596,A97A1596
• Parties: , 97 FCDR 4508 BELL SOUTH TELECOMMUNICATIONS, INC. v. WIDNER et. al.
• Court: Georgia Court of Appeals

Page 52

495 S.E.2d 52

229 Ga.App. 634, 97 FCDR 4508

BELL SOUTH TELECOMMUNICATIONS, INC. v. WIDNER et. al.

No. A97A1596.

Court of Appeals of Georgia.

Dec. 3, 1997.

Langley & Lee, Donald W. Lee, Albany, for appellant.

William M. Shingler, Ronnie J. Lane, Donalsonville, for appellees.

BIRDSONG, Presiding Judge.

Pursuant to the grant of an interlocutory appeal, Bell South Telecommunications, Inc., challenges the denial of its motion for summary judgment in an action brought against Bell South by Betrice and William O. Widner. Mrs. Widner sued Bell South for damages arising from her personal injuries and Mr. Widner sued for his loss of consortium after their car fell into a trench which had been dug across a public road to lay a Bell South telephone cable. The Widners contend they were driving at about 10 to 15 mph when their car came to a sudden stop because the trench collapsed under them. Mrs. Widner alleges that she was injured because of the sudden stop.

Bell South contracted with Brookins, Inc., to lay telephone cable across a county road in Miller County, Georgia. The contract specified that a trench be dug in which to lay the telephone cable and that the ditch be filled to return the road to its proper pre-construction condition as a public road. Brookins then contracted with Pro Grassing & Grading, Inc., to perform the actual work.

Brookins' subcontract with Pro Grassing required Pro Grassing to complete the work specified by Bell South at an agreed-upon price to be paid by Brookins. In the subcontract, Brookins did not retain the right to control or supervise the work of Pro Grassing and did not exercise control or supervision over the time, manner, or method in which Pro Grassing performed the work. Pro Grassing used its own equipment and employees to perform the work. Pro Grassing billed Brookins directly by invoice and Brookins paid Pro Grassing without deductions for payroll or income taxes or other matters. None of Pro Grassing's employees was carried on Brookins' books as employees of Brookins. Although Pro Grassing did work for other companies as well as Brookins, Bell South had no direct contractual relationship with Pro Grassing in this matter.

Initially the Widners filed suit against Bell South and Brookins and Bell South answered and filed a third-party complaint against Pro Grassing. This first action was dismissed, however, and a timely renewal action filed subsequently. In the renewal action, Bell South moved for summary judgment contending that Bell South was not liable to the Widners for the negligence of its independent contractor. After this motion was denied because the trial court found that material issues of fact remained for trial, the trial court granted Bell South a certificate of immediate review, and upon application to this Court, Bell South was granted an interlocutory appeal. Held:

1. The general rule is that an employer is generally not "responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer." OCGA § 51-2-4. The standards to be considered when determining whether an employer is liable for the negligence of a contractor are set out in OCGA § 51-2-5. Although this list is not exclusive (Peachtree-Cain Co. v. McBee, 254 Ga. 91, 93-94, 327 S.E.2d 188), the only provision realistically at issue is subsection (5): "If the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of master and servant or so that an injury results which is traceable to his interference."

When the contract between Bell South and Brookins is construed properly, it establishes that Brookins was an independent contractor and not an employee of Bell South. None of the traditional measures through which improper control is maintained are present (see OCGA § 51-2-5), and the contract provides for Brookins to have independence in the manner in which it performed the work.

"The true test whether a person employed is a servant or an independent contractor is whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work, as contra-distinguished from the right to insist upon the contractor producing results according to the contract, or whether the contractor in the performance of the work contracted for is free from any control by the employer of the time, manner, and method in the performance of the work. The right to control the manner and method means the right to tell the employee how he shall go about doing the job in every detail, including what tools he shall use and what procedures he shall follow. The right to control the time of doing the job means the right to control the hours of work." (Citations and punctuation omitted.) RBF Holding Co. v. Williamson, 260 Ga. 526, 397 S.E.2d 440.

Therefore, although not necessary for disposition of this appeal, Brookins was an independent contractor.

In this case, the dissent's analysis focuses too much on the relationship between Bell South and Brookins, and in so doing disregards the fact that the work was performed by Pro Grassing, a subcontractor of Brookins. The affidavit of Mr. Brookins, which was not rebutted by the Widners, describes his contract with Pro Grassing, and that contract completely forecloses any idea that Brookins retained the right to control the time and manner of work or that Brookins interfered with or assumed control of Pro Grassing so that a master and servant relationship was created between them. "A denial of the existence of an agency relationship may constitute an uncontradicted fact which will sustain a motion for summary judgment. Likewise, the bare denial of the particular agency relationship of employer-employee, made by a purported party to the relationship, is a statement of fact sufficient to support a motion for summary judgment in an action based on the doctrine of respondent superior. In such circumstances the adverse party may not rest on his pleadings, but by response must set forth specific facts revealing a genuine issue for trial. Exhibiting the mere possibility of a control situation falls short of the specific facts required." (Citations and punctuation omitted.) McDaniel v. Peterborough Cablevision, Ltd., 206 Ga.App. 437, 439, 425 S.E.2d 424. Consequently, as Pro Grassing, the entity that performed the work in question, was an independent contractor of Brookins, Pro Grassing could not be an employee of Bell South so as to impose liability upon Bell South in this case. Thus, the effect of the dissent would be to make Bell South liable for the work of an independent contractor once removed.

2. Further, unquestioned reliance on BellSouth Telecommunications v. Helton, 215 Ga.App. 435, 436(1), 451 S.E.2d 76, is misplaced. First, Helton is a two-judge case, and under the rules of this Court is physical precedent only. Court of Appeals Rule 33(a). Second, and perhaps more importantly, Helton did not construe the contract at issue, and did not hold that the contract created liability under OCGA § 51-2-5(5). Instead, Helton was a review of a trial court's decision after a bench trial under the any evidence standard. The import of that review on this case is shown by the following: "Although there were also contractual provisions which would support a contrary conclusion, we cannot hold that the trial court, acting as trier of fact, erred in finding for Helton on this issue. Under the 'any evidence' rule, we must affirm the trial court's judgment. [Cit.]" Helton supra at 436, 451 S.E.2d 76. Third, in Helton the work was not performed by a subcontractor of the independent contractor with which Bell South contracted to perform the work.

Therefore, Helton does not control the result in this case, and review of the contracts involved to determine the legal relationships of the parties was required. Under the contracts at issue, Bell South was not responsible for the negligence of Brooking's independent contractor, Pro Grassing.

3. Moreover, as this Court does not have the authority to disregard controlling Supreme Court of Georgia precedent, we are required to follow Dekle v. Southern Bell Tel., etc., Co., 208 Ga. 254, 66 S.E.2d 218, even though the dissent may now feel it is out of date or for some other reason should not be followed. The decisions of the Supreme Court shall bind all other courts as precedent. Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI. Therefore, until the Supreme Court reverses Dekle we must follow the dictates of that case.

Moreover, the dissent's effort to distinguish Dekle must fail; the distinctions raised are not differences. To say that different legal principles apply because one plaintiff was a pedestrian and another was in a vehicle ignores the underlying legal basis for the Dekle decision.

Also, the increased legislative control over the activities of public utilities working in public rights-of-way, without altering the rule of Dekle shows the opposite intent from that which the dissent suggests. "All statutes are presumed to be enacted by the General Assembly with full knowledge of the existing condition of the law and with reference to it, and are therefore to be construed in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, and their meaning and effect is to be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and decisions of the courts. [Cits.]" Peachtree-Cain Co. v. McBee, supra at 93, 327 S.E.2d 188. Therefore, the General Assembly's legislative activity without changing Dekle is evidence of an intent to maintain the status of the law, and not change it. "There is no peculiarity in contracts for the...