Fox v. Stanish, 57825

• Decision Date: 03 July 1979
• Docket Number: No. 57825,57825
• Citation: 150 Ga.App. 537,258 S.E.2d 190
• Parties: FOX v. STANISH.
• Court: Georgia Court of Appeals

Page 190

258 S.E.2d 190

150 Ga.App. 537

FOX v. STANISH.

No. 57825.

Court of Appeals of Georgia.

Argued May 7, 1979.

Decided June 13, 1979.

Rehearing Denied July 3, 1979.

Gary L. Davis, Lawrenceville, for appellant.

Webb, Fowler, Tanner & Edmondson, J. L. Edmondson, Lawrenceville, for appellee.

DEEN, Chief Judge.

1. The Workers' Compensation Act as first adopted and as it appeared in the Code of 1933, gave an option to both the employer and employee to reject its provisions, and former Code § 114-201 provided that the parties were presumed to have accepted the provisions of the Act unless notice as herein specified was given to the contrary. The present Code §§ 114-110, 114-111 on the contrary create a conclusive presumption of coverage unless otherwise specifically provided in the Act. Further, the original provision that an employer not operating under the Act was liable to an action in tort but lost his common law defenses of contributory negligence, fellow servant doctrine and assumption of risk (former Code § 114-204; Ga.L.1920, p. 177) was entirely eliminated. The penalties which may presently be assessed against an employer who fails to meet the requirements of the Act are the assessment of damages and attorney fees (Code § 114-603) and criminal prosecution as a misdemeanant (Code §§ 114-9905; 114-9907). See Ga.L.1972, p. 929 et seq., where Georgia was removed from the minority of "elective" states, and Larson's Workmen's Compensation Law, Vol. 2A, § 67.10. Cf. Shaw v. Industrial Commission, 15 Ariz.App. 573, 490 P.2d 18(1) where it was held: "Unfortunately for both the injured employee and her employer, who is the petitioner before this Court, the employer was required to carry workmen's compensation insurance and failed to do so. This fact does not change the applicable law." See also Elliott Addressing Machine Co. v. Howard, 59 Ga.App. 62(2), 200 S.E. 340 (1938). Under the present Code § 114-103 the remedies provided and penalties for noncompliance available exclude all other rights and remedies of the employee against the employer. Thus, under no circumstances may an employee bring a tort action against an employer even though the latter has failed to comply with the Act.

2. The so-called no-fault automobile insurance provided by the Georgia Motor Vehicle Accident Reparations Act (Ga.L.1974, p. 113 et seq.; Code Ch. 56-34B) requires the owner of an automobile to carry both liability insurance in accordance with the requirements of the Motor Vehicle Safety Responsibility Act (Code § 68C-307) and protection for certain stated classes of insureds such as the owner and certain relatives, occupants of the vehicle, and pedestrians injured by it. Code § 56-3403b is thus, as analyzed in Standard Guaranty Ins. Co. v. Davis, 145 Ga.App. 147, 149, 243 S.E.2d 531 (1978), composed of two basic coverages, one relating to liability for negligence to the public generally, and the other relating to an extended group of "insureds" without regard to negligence or fault. It was there held that no-fault coverage does not impinge upon the liability provisions of an automobile insurance policy. "Expressions of liability to another are totally inconsistent with expressions of payment for injuries without regard to fault, especially where personal injury payments are available to only a limited class of persons." Id., p. 150, 243 S.E.2d p. 535. The appellant has cited no case, and we...