Coca-Cola Co. v. Nicks

• Decision Date: 18 November 1994
• Docket Number: COCA-COLA,No. A94A2097,A94A2097
• Citation: 215 Ga.App. 381,450 S.E.2d 838
• Parties: COMPANY v. NICKS.
• Court: Georgia Court of Appeals

Page 838

450 S.E.2d 838

215 Ga.App. 381

COCA-COLA COMPANY v. NICKS.

No. A94A2097.

Court of Appeals of Georgia.

Nov. 18, 1994.

Reconsideration Denied Nov. 30, 1994.

Freeman & Hawkins, Joe C. Freeman, Jr., Charles R. Beans, Atlanta, for appellant.

Ronald J. Freeman, Atlanta, Martin C. Jones, Hapeville, for appellee.

JOHNSON, Judge.

Sonya Nicks was injured when she stepped into a partially uncovered manhole on the sidewalk adjacent to the headquarters of the Coca-Cola Company ("Coca-Cola"). The accident occurred as Nicks was leaving her job at Coca-Cola, where, as she asserts in her complaint, she had been working for several months as an employee on loan from Volt Temporary Agencies. Nicks collected workers' compensation benefits from Volt, including a $20,000 lump sum settlement prior to initiating this premises liability action against Coca- Cola, Coca-Cola Enterprises and the City of Atlanta alleging negligent maintenance of the sidewalk. Coca-Cola Enterprises and the City of Atlanta were later dismissed from the suit. Coca-Cola moved for summary judgment asserting that, as a "borrowed servant," Nicks' sole remedy, as a matter of law, lay in workers' compensation. We granted Coca-Cola's application for interlocutory review of the trial court's denial of the motion which concluded that genuine issues of fact remain regarding Nicks' employment status.

"In order for an employee to be a borrowed employee, the evidence must show that (1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control; and (3) the special master had the exclusive right to discharge the servant. All of these elements must exist and the element of the right to control relates specifically to the occasion when the injury occurred." (Citations and punctuation omitted.) Sheets v. J.H. Heath Tree Svc., 193 Ga.App. 278, 279, 387 S.E.2d 155 (1989). See also Stephens v. Oates, 189 Ga.App. 6, 374 S.E.2d 821 (1988). Volt, the general employer in this case, assigned Nicks to work at Coca-Cola. Nicks was trained, supervised, and given assignments by Coca-Cola personnel, and worked alongside Coca-Cola employees at the same tasks. Nicks enjoyed the same privileges as those employees, including eating in the cafeteria, shopping at the Coca-Cola store, and using the credit union. She was subject to the same dress code and rules of the company. Coca-Cola had the exclusive authority to terminate her employment, a right which it ultimately exercised. We disregard the hearsay testimony proffered by Nicks in her affidavit given in opposition to Coca-Cola's motion for summary judgment regarding who could control her work at Coca-Cola, as it directly contradicts her sworn deposition testimony. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680 (1986). The record clearly establishes that Nicks was a borrowed servant at the time of her injury.

An employee, working as a borrowed servant, may recover for injuries sustained in connection with his work from either his general or special employer, or in some instances, both. Such recovery, however, is limited to those benefits available under workers' compensation law. A plaintiff may not recover compensation benefits from one of the employers and maintain an action against the other employer in tort. U.S. Fidelity & Guaranty Co....