Brack v. Cppi of Ga., Inc.
| Decision Date | 26 October 2020 |
| Docket Number | A20A1219, A20A1220 |
| Citation | 357 Ga.App. 744,849 S.E.2d 521 |
| Court | Georgia Court of Appeals |
| Parties | BRACK v. CPPI OF GEORGIA, INC. CPPI of Georgia, LLC. v. Brack. |
William Andrew Bowen, Paul Wain Painter III, Savannah, Constance Deanne Cooper, for Appellant in A20A1219.
William J. Rawls II, Richard S. Bruno, Atlanta, for Appellee in A20A1219.
William J. Rawls II, Richard S. Bruno, Atlanta, for Appellant in A20A1220.
William Andrew Bowen, Paul Wain Painter III, Savannah, Constance Deanne Cooper, for Appellee in A20A1220.
The Appellant, James Brack, appeals from the trial court's grant of summary judgment to CPPI of Georgia, Inc. ("CPPI")1 premised on a contract between the CPPI and Tony's Jons, Inc. ("TJ"). CPPI filed a cross-appeal seeking review of the same order. For the reasons set forth infra, we affirm the trial court's order and dismiss CPPI's cross-appeal as moot.
Viewed in favor of the Appellant as the nonmoving party,2 the record shows that CPPI entered into a construction management-at-risk contract ("CMR") with the Board of Public Education for the City of Savannah and the County of Chatham to build a school. The CMR provided that CPPI agreed to complete the work "in accordance with the [c]ontract [d]ocuments and in compliance with all [a]pplicable [l]aws[,]" and to "comply with the rules and regulations of OSHA[3 ] and the Department of Labor [ OCGA § 34–2-6 ]"
CPPI entered into a contract with TJ to provide portable toilets for the CMR construction site. TJ billed CPPI for the work performed at the CMR site through invoices. The Appellant testified at his deposition that he was hired through a temporary placement agency to work for TJ. The Appellant further testified that TJ would "take anyone that request[ed] porta units, ... deliver them ... and then after that we would come back once a week to clean [the portable toilets,]" or sometimes twice a week depending on the customers’ recommendations. He testified that he placed six portable toilets at the construction site and cleaned and maintained them through April 2015. On April 10, 2015, the Appellant was injured at the CMR site while pumping out a portable toilet. He sued CPPI for negligence and damages for pain and suffering, medical expenses, and lost wages.
CPPI initially moved for partial summary judgment arguing that the Appellant's injuries were not proximately caused by the April 10 accident. Later, CPPI moved for summary judgment arguing that it was a principal contractor and statutory employer of the Appellant under OCGA § 34-9-8, and that OCGA § 34-9-11 provided it with tort immunity and provided the Appellant with the exclusive remedy.
After a hearing, the trial court granted CPPI's motion for summary judgment, finding that the Appellee was immune from suit under OCGA § 34-9-11.4 These appeals follow.
Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Furthermore, a de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Moreover, at the summary-judgment stage, we do not resolve disputed facts, reconcile the issues, weigh the evidence, or determine its credibility, as those matters must be submitted to a jury for resolution.5
With these guiding principles in mind, we turn now to the parties’ specific claims of error.
1. The Appellant argues that the trial court erred in granting CPPI's motion for summary judgment on the basis that CPPI was his statutory employer under OCGA § 34-9-8 (a)6 and that it was immune from tort liability. Under OCGA § 34-9-8, the Appellant contends that his job duties under the contract between TJ and CPPI which consisted of providing portable toilets and cleaning them once a week — were not the subject matter of the contract at issue, and consequently TJ was not a subcontractor under the intent and purpose of the statute. We disagree and affirm the trial court's ruling.
Under the exclusive remedy provision of the Workers’ Compensation Act7 found in OCGA § 34-9-11 (a) that was in effect at the time of the Appellant's accident,8 the relevant portion provides that the rights and resolutions of an employee in this Act
Therefore, where the [Workers’ Compensation] Act applies, it provides the employee's exclusive remedy against his employer and precludes recovery on a tort claim by an injured employee against his employer. Relatedly, the statutory employer provision of the Workers’ Compensation Act, OCGA § 34-9-8, makes principal or intermediate contractors secondarily liable for workers’ compensation benefits for injured employees of a subcontractor.9
The Act provides for three express exceptions to an employee's right to sue a third party tortfeasor, and it is undisputed that CPPI does not fall under any of these exceptions. "[CPPI] was not an employee of the same employer; it was neither an insurer nor a person who provided workers’ compensation benefits under a contract with the employer; nor was it a ‘construction design professional.’ "10 In Wright Associates v. Rieder ,11 the Supreme Court of Georgia created a fourth exception to the statute, ruling that "the injured employee of a subcontractor could not maintain a tort action against the principal contractor, even when the principal contractor did not pay workers’ compensation benefits."12 Based on the foregoing, the only possible exception to tort liability for CPPI "must come as a statutory employer."13
In the present action, if CPPI was the Appellant's statutory employer, then CPPI would possess immunity from a tort claim.14 In actions where the facts relating to an affirmative defense are uncontradicted, disposition by summary judgment may be proper.15
In the order granting CPPI's motion for summary judgment, the trial court found that OSHA rules and regulations required that toilets were to be provided at construction jobsites under 29 CFR 1926.51 (c),16 and that the Appellant was injured on April 10 while "working for [TJ] servicing portable toilets at [the CMR site.]" "In order to make a party to the contract for the sale of goods ... a contractor [under OCGA § 34-9-8 ], the contract to sell must be accompanied by an under-taking by either party to render substantial services in connection with the goods sold."17 Further, "a statutory employer's contractual obligation to another party to maintain a safe workplace does not provide a basis for removing the statutory employer's tort immunity under workers’ compensation law."18
The Appellant's multi-faceted argument that the agreement between TJ and the Appellant was primarily to provide the portable toilets to the CMR and was not subject to the provisions of OCGA § 34-9-8 is belied by the record. In his deposition, the Appellant testified that after he dropped off the portable toilets at the CMR site, he visited the CMR site at least weekly from the autumn of 2014 through April 2015 to service the portable units by cleaning the enclosures and restocking the supplies.
"[A] ‘principal contractor’ engages subcontractors to assist in the performance of the work or the completion of the project which the ‘principal contractor’ has undertaken to perform for another."19 The Appellant's testimony about his job duties at the CMR site show that a significant portion of the contract between TJ and the Appellee was not strictly confined to the delivery of goods.20 Also, according to the CMR contract, CPPI was contractually obligated to provide a safe workplace and follow the OSHA guidelines and regulations.
Consequently, the cleaning and maintaining the portable toilets on the CMR site by TJ for the use of the CPPI's employees was in furtherance of the subject matter of the CMR.21 Based on the foregoing, the contract between TJ and CPPI was for the delivery of the portable units and the substantial services regarding the continuous, periodic service and maintenance of the portable toilets at the CMR site.22
To the extent that the Appellant argues that the purpose and intent of OCGA § 34-9-8 did not cover the relationship between TJ and CPPI, the Supreme Court of Georgia has noted that the "Georgia General Assembly has amended the exclusive remedy provision [found in OCGA § 34-9-11 ] twice since 1981, but has chosen not to overturn the tort immunity granted general contractors in Rieder ."23 Based on the foregoing, the trial court properly found that CPPI was a principal contractor and the statutory employer of the Appellant, and that it received tort immunity from the Appellant's claims under the Workers Compensation Act.24
2. The Appellant, in its reply brief, argues that "crucial contract documents are missing from the record[ ]" that create a genuine issue of material fact. Our review of the record and the Appellant's initial appellate brief show that the Appellant did not previously bring forth this argument. "[T]his Court will not consider arguments raised for the first time in a reply brief."25
For all the above reasons, the trial court properly granted CPPI's motion for summary judgment.
3. In light of our ruling in Case No. A20A1219 which affirmed the trial court's grant of summary judgment to CPPI, the arguments raised by CPPI in this cross-appeal are moot.26
Judgment affirmed in Case No. A20A1219. Appeal dismissed as moot in Case No. A20A1220.
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