Butler v. Glen Oak's Turf, Inc., A90A0690

• Decision Date: 29 May 1990
• Docket Number: No. A90A0690,A90A0690
• Citation: 196 Ga.App. 98,395 S.E.2d 277
• Parties: BUTLER v. GLEN OAK'S TURF, INC.
• Court: Georgia Court of Appeals

Page 277

395 S.E.2d 277

196 Ga.App. 98

BUTLER v. GLEN OAK'S TURF, INC.

No. A90A0690.

Court of Appeals of Georgia.

May 29, 1990.

Rehearing Denied June 22, 1990.

Certiorari Denied Sept. 4, 1990.

Macklyn A. Smith, Lawrenceville, for appellant.

Freeman & Hawkins, Warner S. Fox, Carey E. Fox, Atlanta, for appellee.

SOGNIER, Judge.

Elaine Butler appeals from the dismissal of her tort suit against her former employer, Glen Oak's Turf, Inc.

Butler's complaint was dismissed on the basis that the two-year statute of limitation for personal injuries, OCGA § 9-3-33, had run. In her complaint Butler alleged she was injured in a work related accident on May 18, 1987. It is uncontroverted that Butler thereupon proceeded under the Workers' Compensation Act, OCGA § 34-9-1 et seq. (the Act), and was awarded benefits thereunder by the administrative law judge (ALJ). On de novo review, the State Board of Workers' Compensation adopted the award of the ALJ, and on appeal to the superior court, the board's award of benefits was affirmed. In Glen Oak's Turf v. Butler, 191 Ga.App. 840, 383 S.E.2d 203 (1989), this court reversed the superior court's affirmance of the award on the basis that Butler was a "farm laborer" who was excluded from workers' compensation coverage pursuant to OCGA § 34-9-2(a). That decision was rendered June 7, 1989; on July 14, 1989, Butler filed the instant suit.

We agree with appellee that appellant's cause of action vested on May 18, 1987 when appellant was injured by a fork lift turning over on her, see generally Synalloy Corp. v. Newton, 254 Ga. 174, 177(2), 326 S.E.2d 470 (1985), and under OCGA § 9-3-33 the statute of limitation began to run from that date. We thus find no merit in appellant's argument that the statute of limitation did not begin to run until we handed down our opinion in Glen Oak's Turf, supra, on June 7, 1989.

However, we do not agree with the argument presented by appellee, and accepted by the trial court, that the proceedings instituted by appellant pursuant to the Workers' Compensation Act had no impact on the running of the statute of limitation on appellant's common law tort case. Although this issue appears to be of first impression in Georgia, other states have addressed the matter. We find most persuasive the holding of the Supreme Court of California in Elkins v. Derby, 12 Cal.3d 410, 115 Cal.Rptr. 641, 525 P.2d 81 (1974), which addressed the identical issue, whether the statute of limitation on a plaintiff's personal injury action was tolled for the period during which the plaintiff pursued his workers' compensation remedy against the defendant. In that case the plaintiff, injured while working on the defendants' premises, reasonably and in good faith filed a timely claim for benefits with the California Workmen's Compensation Appeals Board. The Board determined after several months that the plaintiff was not covered because he was not an "employee" at the time of his injury. Shortly after the Board's order became final the plaintiff filed his civil action which, not having been filed within a year of the injury, was held barred by the applicable statute of limitation. As in the case sub judice, the defendants in Elkins argued that the dismissal of the plaintiff's claim was proper because the plaintiff could have preserved his rights despite the statute of limitation by simultaneously commencing a civil action and a compensation claim. The California court held that "the statute [of limitation] may properly be tolled for the period during which plaintiff pursued his compensation remedy.... [A]n awkward duplication of procedures is not necessary to serve the fundamental purpose of the limitations statute, which is to insure timely notice to an adverse party so that he can assemble a defense when the facts are still fresh. The filing of a compensation claim accomplishes this purpose and the tolling of the statute does not frustrate it. Moreover, nothing in the cases forecloses a rule that the statute is tolled during the pendency of compensation proceedings.... Defendants' suggested duplicative procedures would impose a heavy burden on all concerned. Such procedures would entail the filing of cases in our heavily burdened superior courts that would be mooted whenever the board decided it had jurisdiction to grant relief. Such procedures also would impose upon the claimant the burden of alleging contradictory pleas, for example, that he both was and was not an employee at the time of his injury or that his injury both did and did not arise from the course of his employment. Although the workmen's compensation system seeks to establish a nontechnical means to recover for industrial injuries a dual filing requirement presupposes a professional knowledge without which the worker would forfeit all right to recover." Id. 115 Cal.Rptr. at 642-43, 525 P.2d at 82-83. See also Larson, Law of Workmen's Compensation, Volume 2A § 67.31 (1989). While an opposite conclusion was reached by the Supreme Court of Washington in Winston v. Wines, 56 Wash.2d 192, 351 P.2d 929 (1960), we note that in that case, the injury occurred April 29, 1955; the plaintiff's workers' compensation claim was denied in January 1956 at the initial stage of the procedure to obtain such benefits; the plaintiff appealed the denial to both the board of industrial insurance appeals and the superior court, both of which affirmed the denial of his claim; and the plaintiff did not file his civil suit until March 1958, nearly three years after the injury and 26 months after his workers' compensation claim was first rejected. That case is thus distinguishable from the case at bar, where appellant's claim for workers' compensation benefits was successfully received by the ALJ, the Board, and the superior court.

Georgia case law supports the rule set forth in Elkins, supra. In Bishop v. Weems, 118 Ga.App. 180, 162 S.E.2d 879 (1968), the plaintiff brought a wrongful death claim against her husband's employer. The employer asserted the claim was barred because the plaintiff's...