Dixie Roadbuilders, Inc. v. Sallet

• Decision Date: 26 October 2012
• Docket Number: No. A12A0884.,A12A0884.
• Citation: Dixie Roadbuilders, Inc. v. Sallet, 318 Ga.App. 228, 733 S.E.2d 511 (Ga. App. 2012)
• Parties: DIXIE ROADBUILDERS, INC., et al. v. SALLET, et al.
• Court: Georgia Court of Appeals

318 Ga.App. 228

733 S.E.2d 511

DIXIE ROADBUILDERS, INC., et al.

v.SALLET, et al.

No. A12A0884.

Court of Appeals of Georgia.

Oct. 26, 2012.

Ryburn Clay Ratterree, for Dixie Roadbuilders, Inc., et al.

Richard H. Middleton Jr., Savannah, for Sallet, et al.

McFADDEN, Judge.

Melvin Sallet died from injuries sustained in a shooting at a convenience store. His adult children and his estate brought a wrongful death action against Sallet's employer, Dixie Roadbuilders, Inc., and Dixie Roadbuilders' president and part-owner, Alton C. Walker, Jr., among others. Dixie Roadbuilders sought summary judgment on the ground that the action against it was precluded by the exclusive remedy provision of the Workers' Compensation Act. Walker sought summary judgment on the ground that he could not be held personally liable, as a corporate officer of Dixie Roadbuilders, for that company's alleged tortious acts. The trial court denied these motions, and we granted the defendants' application for interlocutory review.

We find that a factual question exists as to whether workers' compensation applies to Sallet's injuries, and we find that the plaintiffs may challenge the applicability of workers' compensation to those injuries, notwithstanding Dixie Roadbuilders' voluntary workers' compensation payment of Sallet's funeral expenses. Accordingly, we affirm the denial of summary judgment to Dixie Roadbuilders. We also find that a factual question exists as to whether, apart from Walker's role as a corporate officer of Dixie Roadbuilders, he also was the owner and operator of the Dixie Express convenience store and subject to potential liability in that capacity. Accordingly, we affirm the denial of summary judgment to Walker.

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. OCGA § 9–11–56(c). “On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.” (Citation omitted.) Spectera, Inc. v. Wilson, 317 Ga.App. 64, 66, 730 S.E.2d 699 (2012).

1. Facts.

So viewed, the evidence showed that Dixie Roadbuilders employed Sallet as a loader operator at its asphalt plant. Sometime during the afternoon of October 17, 2005, Sallet left the plant and drove to the nearby Dixie Express convenience store. While Sallet was at the store, a robbery occurred and he was shot. He subsequently died of his injuries.

The Dixie Express store is associated with Dixie Roadbuilders, but the relationship between the two entities is unclear from the evidence. Dixie Roadbuilders employed the store's workers, and one witness described the store as a division of Dixie Roadbuilders. One of Dixie Roadbuilders' co-owners deposed that Dixie Roadbuilders leased the store from another party. The other co-owner, Dixie Roadbuilders president Alton C. Walker, Jr., deposed that Dixie Roadbuilders owned the store. But Walker also represented himself to be the “owner/operator” of Dixie Express in sworn statements made in connection with the store's business license and occupational taxes. Although Dixie Roadbuilders' corporate secretary deposed that Walker signed those statements in his capacity as Dixie Roadbuilders' president, the documents do not reflect any relationship between Dixie Roadbuilders and Dixie Express.

The main purpose of the Dixie Express store was to provide a place near the plant for Dixie Roadbuilders trucks to refuel. The store also was open to the public and sold items such as drinks and snacks. Sallet often took an afternoon break to get a drink from the store. He did not need permission to do this, but would “just jump in his truck and go.” On the day in question, Sallet did not tell his supervisor or any other person at Dixie Roadbuilders that he was leaving the plant. Various persons at Dixie Roadbuilders assumed he had taken a break to get a drink, however, because he had left his loader parked in the plant's yard rather than securing it under a shelter as was his usual practice when he left work for the day.

Sallet also was in the habit of stopping at the Dixie Express store before or after work. And, although he usually worked until 5 p.m., he would sometimes leave earlier if work was slow. There is evidence that he did not need permission to leave early, but also that he never left early without asking. He did not ask to leave early on the day of the shooting. But Sallet had made plans with one of his daughters for her to visit him at his house or call him at his house that afternoon, after her child got home from school.

After the shooting, Dixie Roadbuilders filed a claim with its workers' compensation insurance carrier. In response to this claim, the carrier made a payment directly to the funeral home for Sallet's funeral expenses and a payment to the State Board of Workers' Compensation pursuant to OCGA § 34–9–265(f). The plaintiffs, however, neither sought workers' compensation benefits from Dixie Roadbuilders nor requested that it file the claim with its insurance carrier. They did not know that the funeral costs had been paid by Dixie Roadbuilders' workers' compensation carrier but believed that these costs had been paid by a friend of Sallet.

2. Questions of fact regarding the applicability of the Workers' Compensation Act preclude the grant of summary judgment to Dixie Roadbuilders.

Dixie Roadbuilders argues that it is entitled to summary judgment because the exclusive remedy provision of the Workers' Compensation Act, OCGA § 34–9–11, precludes the plaintiffs' tort suit against it. The Workers' Compensation Act

provides benefits to an employee injured in an accident arising out of and in the course of the employment. [OCGA § 34–9–1(4).] The legislature has expressly codified its intent that the Act be liberally construed to bring both employers and employees within the [A]ct. [OCGA § 34–9–23.] Where the Act is applicable, its provisions are the exclusive remedy for the employee against the employer. [OCGA § 34–9–11.]

Doss v. Food Lion, 267 Ga. 312(1), 477 S.E.2d 577 (1996).

Dixie Roadbuilders contends that the Act applies because Sallet's death arose out of and in the course of his employment. These are “two independent and distinct criteria, and an injury is not compensable [under the Act] unless it satisfies both.” (Citation omitted.) Mayor & Aldermen of the City of Savannah v. Stevens, 278 Ga. 166(1), 598 S.E.2d 456 (2004). An injury or death arises out of employment “when it is apparent to the rational mind, upon consideration of all the circumstances, that there is a causal connection between the conditions under which the work is required to be performed and the resulting injury.” (Citations and punctuation omitted.) Blair v. Georgia Baptist, etc., Ministries, 189 Ga.App. 579, 580–581(1), 377 S.E.2d 21 (1988). Accord Ray Bell Constr. Co. v. King, 281 Ga. 853, 855, 642 S.E.2d 841 (2007). An injury or death arises in the course of employment “when it occurs within the period of the employment, at a place where the employee reasonably may be in the performance of [his] duties, and while [he] is fulfilling those duties or engaged in doing something incidental thereto. This statutory requirement relates to the time, place and circumstances under which the injury takes place.” (Citation omitted.) Burns Intl. Security Svcs. v. Johnson, 284 Ga.App. 289, 292(1)(b), 643 S.E.2d 800 (2007). Accord Ray Bell Constr., 281 Ga. at 854–855, 642 S.E.2d 841. Whether an injury arises out of and in the course of employment is generally a mixed question of law and fact. Blair, 189 Ga.App. at 581(1), 377 S.E.2d 21.

Dixie Roadbuilders argues that Sallet's death satisfies both criteria as a matter of law. It bases this argument on its assertions that, when Sallet went to the Dixie Express store, he had not left work for the day and he was not on a personal pursuit. But, as explained below, the evidence as to both of these assertions is conflicting and consequently does not support a grant of summary judgment to Dixie Roadbuilders.

(a) A question of fact exists as to whether Sallet had left work for the day. First, there is conflicting evidence regarding whether, at the time of the shooting, Sallet had left work for the day or merely was on a break and planning to return to work. This issue is material to the applicability of workers' compensation (and thus the exclusive remedy provision) because

[t]he hazards encountered by employees while going to or returning from their regular place of work, before reaching or after leaving the employer's premises, are not ordinarily incident to the employment, and for this reason injuries from such hazards are in most instances held not to be compensable as arising out of and in the course of the employment.

(Citation omitted.) Harrison v. Winn Dixie Stores, 247 Ga.App. 6, 7, 542 S.E.2d 142 (2000).

Dixie Roadbuilders argues that Sallet had merely taken a short break, pointing to evidence such as his practice of taking a mid-afternoon break, the fact that he did not seek permission to leave for the day, and the fact that he had left his loader in the plant yard, rather than securing it under a shelter for the night. But there also is evidence that Sallet had left work for the day, namely his practice of leaving early when work was slow, the fact that he did not need to seek permission to leave, and the fact that he had made plans with his daughter for that afternoon. From this conflicting evidence, a jury could find that Sallet had left work for the day when he was shot. (Given this conflicting evidence, and in light of the fact that the evidence rules in Georgia will be changing on January 1, 2013, we decline to address the admissibility of other evidence that, shortly before the shooting, Sallet told a friend on the telephone that he had...