Freeman v. Barnes

• Decision Date: 09 November 2006
• Docket Number: No. A06A1627.,A06A1627.
• Parties: FREEMAN v. BARNES, et al.
• Court: Georgia Court of Appeals

640 S.E.2d 611

FREEMAN v. BARNES, et al.

No. A06A1627.

Court of Appeals of Georgia.

November 9, 2006.

Reconsideration Denied December 14, 2006.

Robert D. Ware, Allison K. James, Office of the County Attorney, Atlanta, for appellant.

Rosser A. Malone, George B. Spears, Atlanta, for appellees.

BARNES, Judge.

On March 11, 2005, Judge Rowland Barnes was murdered while on the job in his Fulton County Superior Court courtroom. Barne's widow sued Fulton County Sheriff Myron Freeman and eight deputy sheriffs in her capacity individually as the judge's surviving spouse, on behalf of his children, and as executrix of his estate. She sought damages based on "gross negligence and conscious indifference amounting to wilful and wanton misconduct" by Freeman and the failure of all defendants in carrying out ministerial duties. Freeman answered, then moved to stay the proceedings and dismiss the complaint on the grounds that he and Judge Barnes were co-employees of Fulton County and of the State, and thus the exclusive remedy provision of the Workers' Compensation Act barred this action.¹

The trial court stayed the proceedings except for limited discovery on this issue, and Barnes subsequently moved for a partial summary judgment on Freeman's defense that the suit is barred by the Workers' Compensation Act. After a hearing, the trial court denied Freeman's motion and granted Barnes's motion, noting that both parties conceded that the sheriff was an employee of the county, and that the judge was an employee of the State, disputing only whether the judge was also an employee of the county and whether the sheriff was also an employee of the State. The State did not controvert Barnes's claim for workers' compensation benefits and is currently paying her survivor's benefits, administered through the Department of Administrative Services.

At the motions hearing, the trial court acknowledged the existence of two attorney general opinions concluding that state officers, and specifically superior court judges, were not employees of the State for workers' compensation purposes, and asked the sheriff's counsel his position with regard to those opinions. Defense counsel responded,

If you look at that opinion I think it was Attorney General [Arthur] Bolton.... It was long before the new workers' comp law was passed. It was long before any of the local legislation was passed. Long before—it's an old old opinion. What the new statute says, 34-9-11, provides that a person can be an employee even as an elected official as long as the county takes the steps to do so, has to pass a resolution .... And you're right. That opinion does exist and it predates all the law... . And so the opinion by definition I believe has been overwritten by the statute.

Freeman appealed to this court² the trial court's order holding that Judge Barnes was "an employee only of the State and that [Freeman] was an employee only of the county, for workers' compensation purposes." For the reasons that follow, we affirm the trial court.

Freeman enumerates four errors on appeal, contending the trial court erred by holding (1) that Judge Barnes was only an employee of the State rather than also a county employee; (2) that Freeman was only an employee of Fulton County; (3) that absent specific legislative authority, Fulton County could not provide workers' compensation coverage to superior court judges; and (4) that even if the sheriff and judge were co-employees, the exclusive remedy provision of the Workers' Compensation Act would not apply because the sheriff owed a fiduciary or unique duty to protect the judge.

On appeal we review the trial court's grant of summary judgment de novo to determine whether the evidence, viewed in the light most favorable to the nonmoving party, demonstrates a genuine issue of material fact. Summary judgment is proper only when no issue of material fact exists and the moving party is entitled to judgment as a matter of law. Preferred Real Estate Equities v. Housing Systems, 248 Ga.App. 745, 548 S.E.2d 646 (2001).

Under OCGA § 34-9-11(a), the Georgia Workers' Compensation Act is the exclusive remedy for injuries sustained by an employee during the course of employment resulting from the negligence of a co-worker. Wall v. Phillips, 210 Ga.App. 490, 491, 436 S.E.2d 517 (1993). Thus, if the judge and sheriff are co-employees of either the State and county, this suit is barred.

Both parties agree that Judge Barnes was a State employee, and therefore we will assume, without deciding, that this is so.

1. Freeman contends that the trial court erred in finding that Judge Barnes was not an employee of Fulton County in addition to being an employee of the State, asserting that sufficient evidence showed that he was a Fulton County employee. For example, the judge, along with all of the other Fulton County superior court judges, was listed as a covered employee on a Workers' Compensation Report that the county, which is self-insured, filed with the State. The judge received a salary from the county (supplemental to his state salary), and participated in the county's retirement plan, pension plan, and group life insurance. The county issued an employee number and identification card to him. The county personnel director thought the judge was both a state employee and a county employee, and the county workers' compensation supervisor assumed the judge was an employee because he was listed in her computer as an employee. Fulton County paid the funeral bill on its own initiative, and notified Barnes that she would be entitled to weekly survivor's benefits once she submitted the required documentation, which she never did.

On the other hand, as the trial court found, the judge was not a county employee just because the county alleged he was entitled to workers' compensation benefits, or because it paid benefits in the form of funeral expenses. The evidence shows that Fulton County paid the funeral expenses after its workers' compensation administrator visited Barnes at the hospital the day of the shooting, asked her which funeral home her late husband would be taken to, and advised her that the county would pay up to $7,500 in funeral costs. While Barnes identified the funeral home and did not question the administrator further at that time regarding the payment, we think that this action undertaken at this time does not constitute "acceptance" of workers' compensation benefits as contemplated by the statute. Further, the funeral home subsequently returned the funds to the county after the State paid the bill under its workers' compensation coverage. "[A]n employer in a situation where coverage is questionable should not be able to voluntarily assume liability for the limited benefits of the Workers' Compensation Act and thereby avoid the potentially greater liability of a common-law action." Collins v. Grafton, Inc., 263 Ga. 441, 444(3), 435 S.E.2d 37 (1993).

Additionally, superior court judges are vested by the Georgia constitution with the judicial power of the State, Ga. Const. Art. 6, Sec. 1, Par. 1, and are defined as "state officials" for compensation purposes. OCGA § 45-7-4(a)(20). That Code section also notes that "Each superior court judge shall also receive any supplement paid to such judge by the county or counties of such judge's judicial circuit as may be provided for by law." Our constitution provides that the State is divided into judicial circuits set by the General Assembly. Ga. Const. Art. 6, Sec. 1, Par. 6. A circuit may consist of more than one county, and each circuit elects its own superior court judges. OCGA § 15-6-4.1. The constitution also directs superior courts to hold court at least twice each year in each county. Ga. Const. Art. 6, Sec. 1, Pars. 6, 7; see OCGA § 15-6-3. If the General Assembly moves a county from one judicial circuit to another, a superior court judge residing in that county but representing the first circuit is not affected. OCGA § 15-6-7.

While the Atlanta Circuit includes only Fulton County, the Alapaha Circuit, for example, includes five counties: Atkinson, Berrien, Clinch, Cook, and Lanier. See OCGA § 15-6-3(1). It would be illogical to find that a superior court judge for the Alapaha Circuit is also an employee of each of these five counties. Further, a chief superior court judge's law assistant and the court administrator for the circuit are paid from state funds appropriated for the operation of the superior court. OCGA §§ 15-6-27, 15-6-28.

A superior court judge's jurisdiction "is coextensive with the limits of this [S]tate," and a superior court judge "may act in circuits other than their own when authorized by law." OCGA § 15-6-12(a). "The code . . . recognizes every judge as having jurisdiction extending throughout the State." Daniels v. Towers, 79 Ga. 785, 789, 7 S.E. 120 (1887). Superior court judges may sit by designation on the Supreme Court of Georgia, and senior superior court judges may sit on the Court of Appeals of Georgia. OCGA §§ 15-2-2, 15-3-1(g). The salary of superior court judges cannot be changed during their term of office, although their county supplement may be. Houlihan v. Atkinson, 205 Ga. 720, 729(3), 55 S.E.2d 233 (1949). A county's contribution to a superior court judge's salary does not establish that the county is the judge's employer. See State Dept. of Revenue v. McCray, 101 Ga.App. 348, 350(2), 114 S.E.2d 64 (1960) (when salary paid by both State Revenue Department and liquor distributor, "employer" is distributor who controlled time, manner, and method of work).

Finally, Fulton County superior court judges are authorized to participate in the county's pension plan by virtue of local legislation which specifically authorized the county to make these benefits available to "[a]ll state, state and county or county officers, deputies and employees, and the deputies of such officers and Court employees whose salaries or wages are paid in whole or in...