Clements v. Georgia Power Co.

• Decision Date: 25 January 1979
• Docket Number: 56535,Nos. 56534,s. 56534
• Citation: 252 S.E.2d 635,148 Ga.App. 745
• Parties: CLEMENTS v. GEORGIA POWER COMPANY. AEGER v. GEORGIA POWER COMPANY.
• Court: Georgia Court of Appeals

Page 635

252 S.E.2d 635

148 Ga.App. 745

CLEMENTS v. GEORGIA POWER COMPANY.

AEGER v. GEORGIA POWER COMPANY.

Nos. 56534, 56535.

Court of Appeals of Georgia.

Submitted Sept. 7, 1978.

Decided Jan. 5, 1979.

Rehearing Denied Jan. 25, 1979.

Frank M. Eldridge, Decatur, for appellants.

Lokey & Bowden, Glenn Frick, Gary Hill, Atlanta, for appellee.

McMURRAY, Judge.

In 1973 Georgia Power Company, owner of Plant Yates in Coweta County, Georgia, was in the process of constructing an addition to said plant. United Engineers & Constructors, Inc. was an engineering concern with whom Georgia Power Company contracted to construct, engineer and manage certain additions to Plant Yates pursuant to a written contract between the parties.

On June 6, 1973, while employed at this project as boiler-maker riggers, Henry J. Aeger and Richard Clements as employees of United Engineers & Constructors, Inc. fell to their deaths while in the process of constructing a boiler. The wives of the decedents brought separate actions for wrongful death against Georgia Power Company and certain individuals as agents, servants and employees of United Engineers & Constructors, Inc. acting within the scope of their employment, as well as against Commercial Union Insurance Company, which is no longer in the case by reason of an order dismissing it. Service upon the employees was not obtained, and the actions remained against Georgia Power Company.

In certain paragraphs of the petitions plaintiffs alleged the individual defendants were negligent in performance of their duties in supervising, directing, inspecting and permitting the splicing of certain cables used in the rigging which was in violation of the Occupational Safety and Health Act of 1970 (known as OSHA) (29 U.S.C. § 651) and certain occupational safety standards promulgated by the Secretary of Labor based on OSHA, "in failing to enforce the use of safety belts, life lines, lanyards and to secure the working surface and in not rigging a safety net." Further, defendant Georgia Power Company as owner and occupier of the premises negligently failed to maintain the premises in a safe condition and permitted its contractor, United Engineers & Constructors, Inc., to do such wrongful acts in violation of a duty imposed by OSHA and "in making a negligent inspection of the work in progress."

Defendant Georgia Power Company answered, denying generally the averments of each complaint, although admitting jurisdiction. In each case it also filed a motion to strike (including other issues) certain paragraphs of each petition with reference to the allegations as to OSHA requirements because same were immaterial, irrelevant, prejudicial and inflammatory and calculated to confuse and mislead the jury in its consideration of the relevant issues since these allegations by the plaintiffs sought to charge the defendant with violations of OSHA rules as to employers and employees and to charge this defendant with violation of these standards wherein it was not the employer. It also sought to strike language that this defendant had permitted its contractor to do such wrongful acts in violation of the duty imposed by OSHA for the same reasons. Other portions of the respective petitions which the defendant sought to be stricken therefrom are not necessary to be mentioned here inasmuch as they are not involved in this appeal.

The motion to strike was sustained, after a hearing, and the respective petitioners were directed to redraft the petition excluding the language stricken.

After discovery and based upon the pleadings, depositions and certified copy of the contract, the defendant moved for summary judgment showing workers' compensation claims had been paid by the immediate employer of the deceased employees. These motions were sustained, and judgment was rendered against the plaintiffs and in favor of the defendant. Plaintiffs appeal respectively. Held:

1. Coverage by workers' compensation of an employee does not prevent a suit against a third person as a wrongdoer causing injury unless the third person is an employee of the employer. Code § 114-103, as amended by Ga.L.1974, pp. 1143, 1144; Hotel Equipment Co. v. Liddell, 32 Ga.App. 590(1), 124 S.E. 92; Ga. Power Co. v. Diamond, 130 Ga.App. 268, 202 S.E.2d 704. Exceptions to this rule are such cases involving the loaned servant or borrowed employee rule. See Pilcher v. Wise Elec. Co., 129 Ga.App. 92, 93, 198 S.E.2d 713; Forrester v. Scott, 125 Ga.App. 245, 187 S.E.2d 323; U. S. Fidelity, etc., Co. v. Forrester, 126 Ga.App. 762, 191 S.E.2d 787; Id., 230 Ga. 182, 196 S.E.2d 133. Another exception is when the third party is the alter ego of the employer corporation. See such cases as Vaughn v. Jernigan, 144 Ga.App. 745, 746, 242 S.E.2d 482; Chambers v. Gibson, 145 Ga.App. 27, 28, 243 S.E.2d 309.

2. A principal contractor, intermediate contractor, or subcontractor, "shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject-matter of the contract,...