Bradshaw v. Glass

• Decision Date: 06 April 1984
• Docket Number: No. 40591,40591
• Citation: Bradshaw v. Glass, 252 Ga. 429, 314 S.E.2d 233 (Ga. 1984)
• Parties: BRADSHAW d/b/a Bradshaw Enterprises v. GLASS et al.
• Court: Georgia Supreme Court

Page 233

314 S.E.2d 233

252 Ga. 429

BRADSHAW d/b/a Bradshaw Enterprises v. GLASS et al.

No. 40591.

Supreme Court of Georgia.

April 6, 1984.

Michael S. Huff, Huff & Moore, P.C., Marietta, for Steve Bradshaw, d/b/a Bradshaw Enterprises.

Thomas F. Brown II, Essley B. Burdine, Sr., Decatur, Richard L. Powell, Marietta, for Lawrence V. Glass et al.

Kinney, Kemp, Pickell, Sponcler & Joiner, Maurice M. Sponcler, amicus curiae.

PER CURIAM.

We granted certiorari in this case after the Court of Appeals' denial of the application for discretionary appeal. It is a case in which an injured employee of a subcontractor is seeking to hold the general contractor liable under OCGA § 34-9-8 (Code Ann. § 114-112) for payment of workers' compensation benefits. The administrative law judge, State Board of Workers' Compensation, and the Cobb Superior Court agreed that the general contractor is liable. The general contractor denies liability on the ground that he is excluded from operation of the Workers' Compensation Act under OCGA § 34-9-2(a) (Code Ann. § 114-107), because he, unlike the subcontractor, does not have the minimum number of three employees. We agree and reverse.

In this case, the employee, Lawrence Glass, sustained injuries while in the employ of Herbert Wheeler, who is a subcontractor who was hired to do carpentry work by Steven Bradshaw d/b/a Bradshaw Enterprises. Bradshaw is a general contractor engaged in the construction of residential homes. Glass was doing carpentry work on one of these homes when he fell from certain scaffolding, thereby sustaining the injuries for which he seeks workers' compensation benefits.

The Workers' Compensation Act obligates employers subject to the Act's provisions to insure payment of workers' compensation benefits to his own employees. OCGA § 34-9-120 (Code Ann. § 114-601). In establishing the employers and employees to which the Workers' Compensation Act is applicable, OCGA § 34-9-2(a) (Code Ann. § 114-108) provides that the Act shall not apply to, among other things, "any person, firm, or private corporation, including any public service corporation, that has regularly in service less than three employees in the same business within this state unless such employees and their employers voluntarily elect to be bound." ¹

As a general matter, a workers' compensation statutory scheme covers employers and employees who occupy viz-a-viz one another a common-law master-servant relationship. See 29 EGL Workers' Compensation, § 1 et seq. (1980 Rev.); OCGA § 34-9-1(3) (Code Ann. § 114-101). However, in order to ensure that employees in the construction and other industries are covered by workers' compensation, OCGA § 34-9-8(a) (Code Ann. § 114-112) renders the principal (general) or intermediate contractor secondarily liable for payment of workers' compensation benefits to an employee of a subcontractor, when the employee is injured while in the employ of the subcontractor and engaged upon the subject matter of the contract. Wright Assocs. v. Rieder, 247 Ga. 496, 499, 277 S.E.2d 41 (1981). In this manner, the intermediate or principal contractor has come to be referred to as the "statutory employer" of the subcontractor's employee. See Wright Assocs. v. Rieder, supra.

It has been held by the Court of Appeals that in order to sustain a workers' compensation award entered against a general contractor as the statutory employer of an employee of a subcontractor, the award must show that the general contractor has a sufficient number of employees to bring the claim within the provisions of the Workers' Compensation Act. Greyhound Van Lines v. Collins, 132 Ga.App. 806, 209 S.E.2d 250 (1974). See also Scogin v. Ga. Power Co., 165 Ga.App. 2, 299 S.E.2d 84 (1983). We agree.

Judgment reversed.

All the Justices concur, except MARSHALL, P.J., who dissents.

MARSHALL, Presiding Justice, dissenting.

OCGA § 34-9-8(c) (Code Ann. § 114-112) provides, in part: "If such immediate employer is not subject to this chapter by reason of having less than the required number of employees as prescribed in subsection (a) of Code Section 34-9-2 [Code Ann. § 114-108] and Code Section 34-9-124 [Code Ann. § 114-607] does not apply, then such claim may be directly presented to and instituted against the intermediate or principal contractor." ¹ By negative implication, this clearly means to me that the intermediate or principal contractor is secondarily liable for payment of workers' compensation benefits to an employee of a subcontractor even though the intermediate or principal contractor may not be required to provide workers' compensation coverage for his or her own employees in that they number less than three. Therefore, I respectfully dissent.

1 Section 34-9-2 (Code Ann. § 114-108) provides in full:

"(a) This chapter shall not apply to common carriers by railroad engaged in intrastate trade or commerce;...