Carr v. Fedex Ground Package Sys., Inc.

Citation317 Ga.App. 733,733 S.E.2d 1
Decision Date02 October 2012
Docket NumberNo. A12A1014.,A12A1014.
PartiesCARR et al. v. FEDEX GROUND PACKAGE SYSTEM, INC.
CourtUnited States Court of Appeals (Georgia)

OPINION TEXT STARTS HERE

James Nicholas Sadd, Atlanta, for Appellant.

Grant Butler Smith and John David Dixon, Atlanta, for Appellee.

McFADDEN, Judge.

This is an action for personal injuries, which Lester Carr sustained while working at a FedEx facility. His wife, Charlene Carr—individually and as his guardian and the conservator over his person and property—appeals from the grant of summary judgment to FedEx Ground Package System, Inc. (“FedEx”). FedEx contends that the action is barred by the exclusive remedy provision of the Workers' Compensation Act. Because, under the terms of the Act, FedEx was Lester Carr's statutory employer at the time of the injury, we agree.

Charlene Carr argues in the alternative that we should remand for additional discovery. But as her request was not presented in the first instance to the trial court, it presents nothing for us to review.

We therefore affirm.

1. Facts and proceedings below.

“Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. On appeal, we review a trial court's grant of summary judgment de novo, construing the evidence and all inferences drawn from it in a light favorable to the nonmovant.” (Citations and punctuation omitted.) Stolte v. Hammack, 311 Ga.App. 710, 716 S.E.2d 796 (2011).

So viewed, the evidence shows that on July 2, 2007, Lester Carr was seriously injured in a fight with a FedEx employee at a FedEx facility. At the time, Lester Carr was at the facility pursuant to his work as a truck driver for J. Wigg Trucking, Inc., a sole proprietorship owned by Jethro Wiggins (“Wiggins”) that had a contract to provide trucking services to FedEx.

In a separate proceeding, Charlene Carr obtained workers' compensation benefits on Lester Carr's behalf from Wiggins. Charlene Carr then filed the instant personal injury action against FedEx, alleging negligent hiring, supervision and retention, as well as failure to maintain safe premises. The trial court granted summary judgment to FedEx on the ground that FedEx was a statutory employer immune from liability under the exclusive remedy provision of the Workers' Compensation Act, OCGA § 34–9–11.

2. Exclusive remedy and statutory employer provisions of the Workers' Compensation Act.

The exclusive remedy provision of the Workers' Compensation Act is as follows.

The rights and remedies granted to an employee by [the Act] shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tortfeasor, [with certain exceptions].

OCGA § 34–9–11(a). “Therefore, where the 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.” (Citations and punctuation omitted.) Teasley v. Freeman, 305 Ga.App. 1, 2(1), 699 S.E.2d 39 (2010). See also Ga. Dept. of Human Resources v. Joseph Campbell Co., 261 Ga. 822, 822–823(1), 411 S.E.2d 871 (1992).

The statutory employer provision of the Act, OCGA § 34–9–8, makes principal or intermediate contractors secondarily liable for workers' compensation benefits for injured employees of a subcontractor. Warden v. Hoar Constr. Co., 269 Ga. 715, 715–716(1), 507 S.E.2d 428 (1998); Yoho v. Ringier of Amer., 263 Ga. 338, 341, 434 S.E.2d 57 (1993); Patterson v. Bristol Timber Co., 286 Ga.App. 423, 430(3), 649 S.E.2d 795 (2007). Thus, the statutory employer doctrine

permits liability for workers' compensation benefits to attach vicariously against someone other than an injured employee's employer. In return, the vicariously liable party is immune from tort liability for the injury suffered [pursuant to OCGA § 34–9–11]. By this section the legislature intended to protect persons working for subcontractors who are financially irresponsible or who are otherwise exempt from the provisions of the Workers' Compensation Act.

(Citations omitted.) Manning v. Ga. Power Co., 252 Ga. 404, 405, 314 S.E.2d 432 (1984).

Immunity from tort actions under the exclusive remedy provision is a correlative benefit of the statutory employer's liability to pay workers' compensation benefits. See Carver v. Jasper Constr. Co., 183 Ga.App. 485(1), 359 S.E.2d 183 (1987). It extends to statutory employers even if the workers' compensation benefits actually were paid by another party, such as the subcontractor. See Wright Assocs. v. Rieder, 247 Ga. 496, 499–500(1), 277 S.E.2d 41 (1981); Patterson, 286 Ga.App. at 430, 649 S.E.2d 795; Redd v. Stanfield, 217 Ga.App. 573, 574(2), 458 S.E.2d 394 (1995). “It is a statutory employer's potential liability for workers' compensation benefits rather than actual liability that triggers the tort immunity.” (Emphasis in original.) Maguire v. Dominion Dev. Co., 241 Ga.App. 715, 717, 527 S.E.2d 575 (1999).

3. FedEx's status as a statutory employer.

Charlene Carr argues that FedEx was not Lester Carr's statutory employer—and therefore not entitled to tort immunity under the exclusive remedy provision—for two reasons: the language of FedEx's contract with Wiggins precludes it from being a statutory employer and FedEx is not a “contractor” under OCGA § 34–9–8. We find no merit in either argument.

a. The contract language does not preclude FedEx from being a statutory employer. Charlene Carr argues that FedEx was not Lester Carr's statutory employer because the language in FedEx's contract with Wiggins shielded it from any workers' compensation liability. She points to a term stating that Wiggins “will provide these [identified] services strictly as an independent contractor, and not as an employee of FedEx Ground for any purpose. (Emphasis supplied.) And she asserts that a term requiring Wiggins to obtain and keep in force workers' compensation benefits, and to provide FedEx with proof of insurance coverage, insulated FedEx from any potential workers' compensation liability.

But, [n]o contract or agreement, written, oral, or implied, nor any rule, regulation, or other device shall in any manner operate to relieve any employer in whole or in part from any obligation created by this chapter except as otherwise expressly provided in this chapter.” OCGA § 34–9–10. FedEx could not have contracted to relieve itself from any obligation created by the Act. See Tillman v. Moody, 181 Ga. 530, 532, 182 S.E. 906 (1935) (interpreting substantively identical predecessor Code provision).

Nevertheless, Charlene Carr contends that our opinion in Gramling v. Sunshine Biscuits, 162 Ga.App. 863, 292 S.E.2d 539 (1982), requires us to interpret the contract to relieve FedEx of its workers' compensation obligations to Wiggins's employees. We disagree. In Gramling, we held that a shipper was not the statutory employer of a truck driver employed by a third party to deliver the shipper's goods to a customer. Id. at 864, 292 S.E.2d 539. We did interpret a provision of a contract between the shipper and the third party “as a disclaimer on the part of the shipper of any responsibility for workers' compensation payments to [the third party's] employees,” but we held that the contract language was “not necessarily controlling of the issue” of the shipper's status as statutory employer. Id. Rather, the shipper in Gramling was not liable for workers' compensation benefits (and thus not entitled to exclusive remedy protections as a statutory employer) because the driver's injury did not occur on the shipper's premises. Id. This dispositive fact distinguishes Gramling from cases, such as the instant case, in which the injury occurred on the alleged statutory employer's work site. See Patterson v. Bristol Timber Co., 286 Ga.App. 423, 430(3), 649 S.E.2d 795 (2007).

Nor do we read the contract as at attempt by FedEx to relieve itself of its obligations under the Act. FedEx's contract with Wiggins merely undertook to establish that Wiggins was an independent contractor rather than an employee of FedEx. The term at issue did not affect whether Wiggins's employee, Lester Carr, was a statutory employee of FedEx. See Wright Assocs., 247 Ga. at 498(1), 277 S.E.2d 41 (a principal contractor is the statutory employer of the employee of a subcontractor who is an independent contractor). Cf. Dennis Perry Homes v. Companion Property & Cas. Ins. Co., 311 Ga.App. 706, 708(1), 716 S.E.2d 798 (2011) (“the law does not permit the employer, simply by designating certain of his employees independent contractors, to by-pass the work[ers'] compensation law, and this is true, although the employer may bona fide believe that the end referred to may be accomplished in the manner mentioned”) (citation and punctuation omitted).

Our Supreme Court has rejected the argument, which Charlene Carr ascribes to FedEx, that a contract term whereby a principal requires a subcontractor to carry workers' compensation insurance insulates that principal from potential liability and precludes it from being a statutory employer.

The purpose of [OCGA § 34–9–8] is to ensure that employees in construction and other industries are covered by workers' compensation. In order to do so, it places an increased burden, in the form of potential liability for workers' compensation benefits, on the statutory employer. This encourages the statutory employer to requiresubcontractors to carry workers' compensation insurance. The fact that the statutory employer reacts to the statute in the manner intended by the legislature should not result in a penalty on the statutory employer [in the form of potential tort liability].... The quid pro quo for the statutory employer's potential liability is immunity from tort liability.

Wright...

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  • Mullinax v. Pilgrim's Pride Corp.
    • United States
    • Georgia Court of Appeals
    • March 9, 2020
    ...for workers’ compensation benefits for injured employees of a subcontractor." (Citation omitted.) Carr v. FedEx Ground Package System, Inc. , 317 Ga. App. 733, 734 (2), 733 S.E.2d 1 (2012). "Thus, so long as [Pilgrim’s] was [the decedent’s] statutory employer, it would enjoy immunity from a......
  • Felker v. Tyson Foods, Inc.
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    ...In return, the vicariously liable party is immune from tort liability for the injury suffered."); Carr v. FedEx Ground Package Sys., Inc., 733 S.E.2d 1, 3 (Ga. Ct. App. 2012) (quoting Maguire v. Dominion Dev. Corp., 527 S.E.2d 575, 577 (Ga. Ct. App. 1999)) ("It is a statutory employer's pot......
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    ...secondarily liable for workers' compensation benefits for injured employees of a subcontractor." Carr v. FedEx Ground Package Sys., Inc., 733 S.E.2d 1, 3 (Ga. Ct. App. 2012). This doctrine—the statutory employer doctrine—"permits liability for workers' compensation benefits to attach vicari......
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