Booth v. Essex Ins. Co., A97A2234.

• Decision Date: 06 November 1997
• Docket Number: No. A97A2234.,A97A2234.
• Parties: BOOTH et al. v. ESSEX INSURANCE COMPANY et al.
• Court: Georgia Court of Appeals

498 S.E.2d 528

231 Ga. App. 542

BOOTH et al. v. ESSEX INSURANCE COMPANY et al.

No. A97A2234.

Court of Appeals of Georgia.

November 6, 1997.

Reconsideration Denied March 25, 1998.

Cook, Noell, Tolley & Wiggins, J. Vincent Cook, Athens, David A. Webster, Atlanta, for appellants.

Alston & Bird, Gerald L. Mize, Jr., Kenneth D. Steele, Atlanta, for appellees. RUFFIN, Judge.

Kevin Helms, while living and working at Project Adam Community Assistance Corporation, Inc. ("Project Adam"), a residential facility for recovering alcohol and drug addicts, was killed by another resident of the facility. Judith Booth, individually and as administratrix of Helms' estate, filed a wrongful death action against Project Adam. At the time of the murder, Project Adam was insured by Essex Insurance Company. Essex filed the instant declaratory judgment action raising the issue of coverage, and Booth intervened. After a bench trial, the superior court ruled that, due to an exclusion in the policy, there was no professional liability insurance coverage because Helms was an employee of the facility whose death arose out of and in the course of his employment.¹ Booth appealed, and for the following reasons, we affirm.

This Court reviews the trial court's finding of fact under the "any evidence" standard. See Kingston Dev. Co. v. Kenerly, 132 Ga.App. 346, 348(1), 208 S.E.2d 118 (1974); Pinkerton & Laws Co. v. Atlantis Realty Co., 128 Ga.App. 662, 665(1), 197 S.E.2d 749 (1973) (clearly erroneous standard set forth in OCGA § 9-11-52 is same as any evidence standard).

The record reveals that Helms first entered Project Adam in May 1991 as a patient/resident. Helms graduated from the program and moved out of the residential facility in February 1992. However, several months later he asked to return. Project Adam allowed him to move back, but since he had graduated from the recovery program, it did not treat him as a "client." Instead, he was given "all the responsibilities that other people had who worked for Project Adam."

From the time of his return to the facility, in April 1992, to the time of his death on July 4, 1992, Helms assumed various work responsibilities. For example, he was a cook for Project Adam, for which he received a $60 reduction in his rent. His duties in this capacity included assisting in the preparation of meals and the grocery lists. He was allowed access to the kitchen, a privilege not afforded mere residents of the facility. In addition, Helms drove the Project Adam van, another privilege or duty afforded only the Project Adam staff. On the July 4 weekend when Helms was killed, he had the responsibility of overseeing the facility while the other staff members were away. He was in charge of Bernard Christie, his assailant, and another resident who stayed at the facility over the weekend. Helms was required to prepare the meals for himself and the two residents.

Sometime on July 4, while Helms was in the kitchen, Christie stabbed Helms to death with a steak knife. Helms was found on the floor of a closet in the kitchen the next day. On the kitchen counter was a box of chicken; some chicken had been removed from the box. The investigating officer said that it appeared as if Helms or someone was planning to prepare some chicken to eat. Christie admitted to murdering Helms.

In holding there was no coverage, the superior court looked to the policy's exclusionary language that provided that the policy did not apply to "bodily injury to any employee of the INSURED arising out of, and in the course of his employment by the INSURED." In appealing, Booth argued that Helms was (1) not an employee, (2) that his actions did not arise out of employment, and (3) that he was not in the course of employment when he was killed.

The first issue we address is whether any evidence supported the superior court's determination that Helms was an employee of Project Adam. In support of her argument that Helms was not an employee, Booth noted that Helms had no contract of employment with Project Adam, was not listed as an employee on state and federal quarterly wage reports, and Project Adam had no W-4 forms, W-2 forms, 1099 forms or employment benefit records for him.

"Employment means the existence of the relationship of master and servant. [Cit.] In determining the existence of the relationship, the main consideration is the right of the employer to control the activities of the employee in the employment duties. [Cits.]" Metro. Life Ins. Co. v. Forsyth, 122 Ga.App. 463, 177 S.E.2d 505 (1970). "The main tests are whether the master is granted or assumes the right to control the time, manner, means, and method of executing the work, and whether the master has the right to discharge the servant. [Cits.]" Housing Auth., City of Cartersville v. Jackson, 226 Ga.App. 182, 183(2), 486 S.E.2d 54 (1997). Another issue to be considered is whether the master receives a benefit from the servant's actions. Id. at 184, 486 S.E.2d 54.

Even though Helms lived at the facility, he was not considered a resident since he had graduated from the program. Helms was more than a mere resident; he cooked and purchased groceries for the residents, drove the Project Adam van to purchase groceries and transport residents and supervised the facility and the residents on occasion. In exchange for these services, which benefited Project Adam, he received compensation: a reduction in his rent. Project Adam controlled what duties Helms performed as well as the manner in which he performed them. Accordingly, there was some evidence to conclude that Helms was an employee under the common law definition...