Blair v. Georgia Baptist Children's Home & Family Ministries, Inc., s. 77628
| Decision Date | 29 November 1988 |
| Docket Number | 77629,Nos. 77628,s. 77628 |
| Citation | 189 Ga.App. 579,377 S.E.2d 21 |
| Parties | BLAIR v. GEORGIA BAPTIST CHILDREN'S HOME & FAMILY MINISTRIES, INC.; GEORGIA BAPTIST CHILDREN'S HOME & FAMILY MINISTRIES, INC. v. BLAIR. |
| Court | Georgia Court of Appeals |
George P. Graves, E. Graydon Shuford, Decatur, for appellant.
Harman, Owen, Saunders & Sweeney, Michael W. McElroy, Craig A. Nance, Atlanta, for appellee.
Appellants Margaret M. Blair (administratrix of the estate of Margaret E. Chastain) and her decedent's children, bring this appeal from the grant of summary judgment to appellee, the Georgia Baptist Children's Home and Family Ministries (Children's Home). Ms. Chastain was employed by the Children's Home as a group leader and perished in a fire which took place in a residential building that formed part of the facilities of the Children's Home. "Group leaders staying overnight at residences provided by the Georgia Baptist Children's Home are subject to call while staying in such residence to answer any emergencies which may arise at the facility." At the time of her death, Ms. Chastain was not "on duty" but was "subject to call." The workers' compensation insurance carrier for the Children's Home issued a check to the funeral home for partial payment of Ms. Chastain's funeral expenses. An employee of the Children's Home's workers' compensation insurance carrier stated that Ms. Blair "acquiesced" in the payment of this workers' compensation benefit.
A tort action was filed and service made upon the person designated by the Office of the Secretary of State as the agent for appellee. No answer was made and appellants took a partial default judgment as to liability and eventually a final judgment in the amount of $200,000. After filing judgment and garnishment, it was determined that the Secretary of State's office had made a mistake as to the registered agent and appellee's motion to set aside the judgment for lack of service was granted. A second tort action was filed in Richmond County and service made upon the correct agent for appellee. Appellee's defense of improper venue was filed and appellant's motion to transfer this action to DeKalb County was granted. Appellees defended, inter alia, on claims of the running of the statute of limitations and that the action was barred by the workers' compensation act.
Appellee filed a motion to dismiss, or in the alternative for summary judgment, on three grounds: (1) this tort action was barred by OCGA § 34-9-11 which provides that an employee's rights under the workers' compensation act provide the exclusive remedy, (2) that appellants are estopped to bring a tort action because of the acceptance of workers' compensation benefits paid to the funeral home, and (3) this action is barred by the running of the statute of limitations. The trial court granted appellee's motion for summary judgment on the basis that Ms. Chastain's death was compensable pursuant to the workers' compensation act and OCGA § 34-9-11 precluded the filing of this action. The appellee's motion for summary judgment on the remaining grounds was denied. Appellants appeal from the grant of summary judgment to appellee and the appellee cross-appeals from the denial of their motion for summary judgment on the basis of estoppel. Held:
1. At issue is whether Ms. Chastain's death was compensable under the workers' compensation act. We hold that it was and affirm the trial court's grant of summary judgment to appellee. To be compensable under workers' compensation, an injury or death of an employee must be one "arising out of" and "in the course of" the employment. OCGA § 34-9-1(4). These two terms are not synonymous. State Dept. of Labor v. Yates, 131 Ga.App. 71, 72, 205 S.E.2d 36. An injury or death " ' "arises out of employment" when it is apparent to the rational mind, upon consideration of all the circumstances, that there is a causal connection between the conditions under which the work is required to be performed and the resulting injury.' " Id. "In the course of" employment "refers to time, place and circumstances under which the accident took place...." Id.
Appellant contends that whether decedent's death arose out of and in the course of her employment is a mixed question of fact and law and should have been submitted to a jury. Appellant is correct, up to a point. " 'The issue of whether an injury arises out of and in the course of employment ... is a mixed question of fact and law.' " Knight v. Gonzalez, 181 Ga.App. 468, 469, 352 S.E.2d 646; accord Utz v. Powell, 160 Ga.App. 888, 889, 288 S.E.2d 601. However, disputes as to immaterial facts do not preclude summary judgment. Murphy v. Bank of Dahlonega, 151 Ga.App. 264, 265 (2), 259 S.E.2d 670; Wood v. Metro. Atlanta Girls' Club, 141 Ga.App. 473, 474 (2), 233 S.E.2d 862. "The summary judgment law does not require the defendant to show that no issue of fact remains, but rather tha[t] no genuine issue of material facts remains [cit.]; and while there may be some 'shadowy semblance of an issue' [cit.], the case may nevertheless be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion." (Emphasis deleted.) McCray v. Hunter, 157 Ga.App. 509, 511-512, 277 S.E.2d 795; accord Evans v. Bibb Co., 178 Ga.App. 139 (1), 342 S.E.2d 484; Southern Trust Ins. Co. v. Braner, 169 Ga.App. 567, 569, 314 S.E.2d 241; see also Chelena v. Ga. Fed. etc., Assn., 256 Ga. 336, 337, 349 S.E.2d 180. Where the material facts are undisputed, as here, and there remains no genuine issue as to any material fact, the moving party can be entitled to judgment as a matter of law. Miles v. Brown Transport Corp., 163 Ga.App. 563, 564-565, 294 S.E.2d 734; Lewis Wood Preserving Co. v. Jones, 110 Ga.App. 689, 691, 140 S.E.2d 113.
2. There is no dispute as to the fact that Ms. Chastain resided in a residence in a building furnished her by the Children's Home, and that she was not "on duty" at the time of the fire, but was "subject to call" in the event her employer determined there was an emergency which required her presence. This was "free time" for her, unless she was needed. The words "in the course of employment" relate to the time, place, and circumstances under which the incident takes place, and if the incident occurs within the period of employment, at a place where the employee may reasonably be in the performance of her duties or engaged in doing something incidental thereto, the employee is within "the course of employment." Barge v. City of College Park, 148 Ga.App. 480, 481, 251 S.E.2d 580. We have not been cited nor have we found any cases involving the facts of this case where an employee remains on the premises, not on duty, and is not per se actively involved in the performance of her normal duties, but is "on call" if needed for performance of her duties. But, it is well-settled law in this state that where a "rest break" or "lunch break" is provided to an employee, during which time the employee is free to use the time as he chooses, making it personal to him, an injury occurring during the break period arises out of personal pursuit and not out of the employment and is not compensable. Edwards v. Liberty Mut. Ins. Co., 130 Ga.App. 23, 24, 202 S.E.2d 208.
We have cases in which an employee is on a break, although not regularly scheduled, but remains "on call" and is injured on the premises. In Twin City Fire Ins. Co. v. Graham, 139 Ga.App. 318, 319, 228 S.E.2d 355, when a nurse taking such a break when activities were slack and was "subject to being called to the operating room at any time," we held that the evidence supported a workers' compensation award for an injury incurred during the break. Again, in Miles v. Brown Transport Corp., supra, we discussed an injury occurring during a break which was not regularly scheduled, but claimant was "free to act as she chooses" and stated that where (...
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