Builders Ins. Group v. Ker-Wil Enterprises

• Decision Date: 19 July 2005
• Docket Number: No. A05A1350.,A05A1350.
• Citation: 618 S.E.2d 160,274 Ga. App. 522
• Parties: BUILDERS INSURANCE GROUP, INC. v. KER-WIL ENTERPRISES, INC.
• Court: Georgia Court of Appeals

274 Ga. App. 522

618 S.E.2d 160

BUILDERS INSURANCE GROUP, INC. v. KER-WIL ENTERPRISES, INC.

No. A05A1350.

Court of Appeals of Georgia.

July 19, 2005.

Charles Davis, Robert Ingram, Moore Ingram Johnson & Steele, Marietta, for appellant.

Thomas Holder, Long & Holder, Katherine Dixon, Drew, Eckl & Farnham, LLP, Morgan Cressman, Swift, Currie, McGhee & Hiers, LLP, Atlanta, for appellee.

ELLINGTON, Judge.

Builders Insurance Group, Inc. ("Builders") filed a petition in the Superior Court of Henry County seeking a judgment declaring its rights with respect to a policy of workers' compensation insurance it issued to Ker-Wil Enterprises, Inc., d/b/a B & K Builders ("Ker-Wil"). Builders filed a motion for summary judgment with its complaint, which the trial court did not address. Ker-Wil filed a motion to dismiss with its answer, which the superior court granted on the ground that a "declaratory judgment is inappropriate at this time." Builders appeals, contending the court erred in dismissing its petition and in denying its motion for summary judgment. For the following reasons, we affirm.

1. Because the record reveals the trial court did not rule on Builders' motion for summary judgment, any claim of error with respect to the merits of that motion present nothing for us to review. Johnson v. Allgood Farm, LLC, 278 Ga. 283, 284(1), 602 S.E.2d 837 (2004). Further, given our holding in Division 2, any such claim of error is also moot.

2. Builders contends the trial court erred in dismissing the declaratory judgment action because an actual controversy as to its rights under the insurance policy exists and that the State Board of Workers' Compensation ("the Board") lacks jurisdiction to resolve that controversy.

The undisputed facts relevant to this enumeration of error are as follows. Jacob Reeves filed a claim with the Board, alleging that both Ker-Wil and Builders are responsible for the payment of benefits arising from an August 26, 2003 injury he sustained. Builders controverted the claim and denied coverage, contending that it had timely and properly cancelled Ker-Wil's workers' compensation policy prior to Reeves' claimed injury. Builders then filed the instant action on June 22, 2004, seeking a judgment declaring its rights with respect to the policy.

As the Supreme Court of Georgia has held:

The purpose of the Declaratory Judgment Act is "to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations." OCGA § 9-4-1. The law is well established that declaratory judgment is not available where a judgment cannot guide and protect the petitioner with regard to some future act — as where an insurance company has already denied a claim. That is because declaratory judgment is not available to a party merely to test the viability of its defenses. [The insurer] having already denied coverage for the claims at issue here, declaratory judgment was not available because it was neither uncertain nor insecure in regard to its rights, status or legal relations.

(Citations and punctuation omitted.) Drawdy v. Direct Gen. Ins. Co., 277 Ga. 107, 109, 586 S.E.2d 228 (2003). See also Adams v. Atlanta Cas. Co., 225 Ga.App. 482(1), 484 S.E.2d 302 (1997) (accord). Because Builders had already denied coverage when it filed its petition for declaratory relief, it was not uncertain or insecure of its rights, status, or legal relations with respect to the making of that decision. Consequently, the trial court was correct in dismissing the action because a declaratory judgment was neither appropriate nor available. Drawdy v. Direct Gen. Ins. Co., 277 Ga. at 109-110, 586 S.E.2d 228.

Builders argues, however, that there should be an exception to this rule in workers' compensation cases because the Board lacks subject matter jurisdiction to resolve the underlying coverage issue. Builders contends the Board lacks authority to issue declaratory judgments or to resolve contract disputes. Although we have found no Georgia case explicitly on point, Builders' assertion does not appear to be a complete and accurate restatement of the applicable rule.

The general rule appears to be that, when it is ancillary to the determination of the employee's right, the [Board] has authority to pass upon a question relating to the insurance policy, including fraud in procurement, mistake of the parties, reformation of the policy, cancellation, existence or validity of an insurance contract, coverage of the policy at the time of injury, and construction of extent of coverage. . . . On the other hand, when the rights of the employee in a pending claim are not at stake, many [Boards] disavow jurisdiction and send the parties to the courts for relief. This may occur when the question is purely one between two insurers, one of whom alleges that it has been made to pay an undue share of an award to a claimant, and the award itself is not being under attack.

( Footnotes omitted.) 9 Larson's Workers' Compensation Law § 150.04[1]-[2]. See, e.g., Spivey v. Oakley's Gen. Contractors, 32 N.C.App. 488, 490-491, 232 S.E.2d 454 (1977) (Industrial Commission had authority to determine whether policy of workers' compensation insurance had been properly cancelled); Southern Farm, etc., Ins. Co. v. Tuggle, 270 Ark. 106, 112-113, 603 S.W.2d 452 (1980) (Commission had jurisdiction over questions of existence and extent of policy of workers' compensation insurance).

Further, the Georgia cases cited by Builders implicitly support this general principle. In Gulf States Underwriters, etc. v. Bennett, 260 Ga.App. 699, 701-702(1), 580 S.E.2d 550 (2003), we held that the administrative law judge lacked subject matter jurisdiction to entertain a fraud claim against an insurance agent, a "non-...