Fred S. James & Co. of Georgia, Inc. v. King

• Decision Date: 24 November 1981
• Docket Number: No. 62212,62212
• Citation: Fred S. James & Co. of Georgia, Inc. v. King, 288 S.E.2d 52, 160 Ga.App. 697 (Ga. App. 1981)
• Court: Georgia Court of Appeals
• Parties: FRED S. JAMES & COMPANY OF GEORGIA, INC. v. KING.

Page 52

288 S.E.2d 52

160 Ga.App. 697

FRED S. JAMES & COMPANY OF GEORGIA, INC. v.KING.

No. 62212.

Court of Appeals of Georgia.

Nov. 24, 1981.

Rehearing Denied Dec. 10, 1981.

Certiorari Denied Jan. 28, 1982.

Williston C. White, Charles B. Zirkle, Jr., Atlanta, for appellant.

David L. Harrison, Atlanta, for appellee.

SOGNIER, Judge.

King, an employee of Cagle's, Inc., was injured on the job.King filed for, and was awarded, Workers' Compensation benefits as a result of the injury.Fred S. James & Co. of Georgia, Inc.(James) is an insurance broker who entered into a service agreement with Cagle's Inc., a self-insurer, to administer its Workers' Compensation program.Under the Workers' Compensation service agreement James was to: "Provide services at each of your major operating locations to assist in reducing accident levels, as well as striving for a decrease in the seriousness of your claims.Generally, the services will include an analysis of work injuries, an in-depth survey, and a safety inspection, followed by written report."

King filed suit against James and United States Fire Insurance Company, the general liability carrier for Cagle's; King subsequently filed a notice of voluntary dismissal without prejudice as to United.King alleges that his injury resulted from a breach of James' contractual and common law duty to inspect and warn Cagle's and its employees of the defective, unsafe and dangerous condition of an ice auger which caused King's injuries.

James filed a motion for summary judgment on the ground that it is entitled to the same immunity from liability as the employer pursuant to Code Ann. §§ 114-101and114-103.The trial court denied James' motion for summary judgment and granted a certificate of immediate review.An application for interlocutory appeal was granted by this court.

Appellant contends that the trial court erred in denying its motion for summary judgment because the agreement with Cagle's applies only to the administration of the self-insurer workers' compensation program; that James is the alter ego of the employer; and that James is not subject to liability as a third party tortfeasor pursuant to Code Ann. § 114-103.Appellee contends that only the workers' compensation insurance carrier is entitled to the same immunity as the employer and that James is not an insurer, but an independent contractor who provides a service to Cagle's.Appellee argues that James is liable as a third party tortfeasor for failing to make a safety inspection under its contract with Cagle's and that James owed a duty to King as a beneficiary of the contract.

Whether James, an insurance broker providing a service to a self-insured employer, is immune from liability as a third party tortfeasor under the Workers' Compensation Act is a case of first impression in Georgia.

The definition of "employer" in Code§ 114-101 includes the state, counties, municipal corporations and political divisions thereof; any individual, firm, association, or public or private corporation engaged in any business (with certain exceptions); and "any person who, pursuant to a contract or agreement with an employer as herein defined, provides workers' compensation benefits to an injured employee, notwithstanding the fact that no common law, master-servant relationship or contract of employment exists between the injured employee and the person providing such benefits.If the employer is insured, this term shall include his insurer as far as applicable."

Code§ 114-103 provides, in pertinent part: "The rights and the remedies herein granted to an employee shall exclude all other rights and remedies of such employee ... at common law or otherwise, on account of such injury ... Provided, however, that no employee shall be deprived of any right to bring an action against any third-party tortfeasor, except employees of the same employer or any person who, pursuant to a contract or agreement with an employer as defined in 114-101, provides workers' compensation benefits to an injured employee, notwithstanding the fact that no common law, master-servant relationship or contract of employment exists between the injured employee and the person providing such benefits."

It is well settled in Georgia that a workers' compensation insurer and its representatives are the alter ego of the employer and are entitled to the same immunity from liability as the employer under the Workers' Compensation Act,Code Ann. § 114-101, et seq.Mull v. Aetna Cas. & Surety Co., 120 Ga.App. 791, 172 S.E.2d 147(1969);Sims v. American Cas. Co., 131 Ga.App. 461, 474, 206 S.E.2d 121(1974);Newton v. Liberty Mut. Ins. Co., 148 Ga.App. 694 (1), 252 S.E.2d 199(1979).The statutory immunity applies except where the insurer issues a policy covering risks other than workers'...