Kilgore v. C. G. Canter, Jr. & Associates, Inc.
| Decision Date | 24 March 1981 |
| Citation | 396 So.2d 60 |
| Court | Alabama Supreme Court |
| Parties | Joe KILGORE v. C. G. CANTER, JR. & ASSOCIATES, INC. 79-802. |
C. Lee Reeves of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, and James S. Hubbard, Anniston, for appellant.
Ray F. Robbins, II, of Gaines, Cleckler, Robbins & Goodrich, Talladega, for appellee.
Appellant Joe Kilgore was the employee of Morrison Electric Company, which was a subcontractor on a construction project of C. G. Canter, Jr. & Associates, Inc., the owner and general contractor. While working for Morrison in the construction of the house owned by Canter, Kilgore was severely injured when heavy sheetrock fell on his leg.
Kilgore filed suit against C. G. Canter, Jr. & Associates, Inc., and others, in which he claimed that Canter failed to maintain a safe place in which to work and that Canter was negligent in stacking and maintaining the sheetrock in a dangerous and unsafe condition. Canter filed a motion for summary judgment, claiming that it could not be sued by Kilgore in this case because Kilgore had received workmen's compensation benefits for his injury. The trial court granted summary judgment and dismissed Canter as a party-defendant. The court issued a final order under ARCP 54(b), and Kilgore appealed. Two issues are presented:
1. Whether the trial court properly granted summary judgment dismissing the general contractor as a party-defendant when the plaintiff-appellant received workmen's compensation benefits paid on behalf of his employer, a subcontractor, by the workmen's compensation insurance carrier of the general contractor;
2. Whether the plaintiff-appellant is barred from suing a general contractor for negligence and failure to maintain a safe place to work when plaintiff has received workmen's compensation benefits from the general contractor's workmen's compensation insurance carrier made on behalf of the subcontractor.
Appellant Joe Kilgore was the sole employee of Morrison Electric Company. Soon after the accident, Kilgore was contacted by State Farm Fire and Casualty Company, Canter's workmen's compensation insurance carrier, and told that a workmen's compensation insurance policy covered his injury while he had been working for Morrison Electric Company and that payments thereunder would be forthcoming. The letter from the carrier, dated April 13, 1978, reads, in part, as follows:
April 13, 1978
Mr. Joseph Kilgore
3005 Walnut Avenue
Anniston, AL 36201
Re: Claim # WC 147 807
Re: Insured C. G. Canter, Jr. & Associates, Inc.
Re: Date of Accident 2-27-78
Dear Mr. Kilgore:
Please be advised that State Farm Fire and Casualty Company provides Worker's Compensation Insurance for C. G. Canter, Jr. and Associates, Inc. We understand that at the time of your injury on February 27, 1978, you were employed with Morrison Electric Company who was under contract to C. G. Canter, Jr. and Associates, Inc. Since your injury was caused by an accident arising out of the line or scope of your employment with Morrison Electric Company, sub-contractor to C. G. Canter, Jr. and Associates, Inc. our Worker's Compensation policy and its benefits do apply to you in this accident.
This is to advise you that the medical expenses you incurred as a result of your injury will be paid under this Worker's Compensation policy as well as compensation for the period of time that you are off from work recovering from this injury. We understand that your average weekly earnings was $106.00 per week which entitles you to compensation in the amount of $70.70 per week compensation.
We are attaching our draft made payable to you for $494.90 paying you compensation for the period of seven weeks from February 28, 1978, through April 17, 1978.
We are at this time requesting medical reports from your physician, Dr. S. R. Smith. Any medical bills that you have incurred and received at this time should be forwarded to us immediately for payment. We are enclosing a self-addressed envelope for your convenience in submitting the medical bills to us.
Please notify us immediately upon your physician releasing you to return to work so that there will not be an overpayment in compensation.
You will receive weekly compensation checks until such time that you are released to return to work by your physician.
Very truly yours,
Jim McCain
Claim Supervisor
JM/ag
616
cc: C. G. Canter, Jr. & Associates, Inc.
cc: Jim Swift, 0754
Kilgore accepted those payments and forwarded his medical bill to the insurance company for payment. Thereafter, Kilgore received checks from State Farm Fire and Casualty Company in the amount of approximately $70 per week. Kilgore admitted receiving the $70 per week from the insurance carrier, but in an affidavit executed and filed in opposition to Canter's motion for summary judgment, he stated that he believed and understood the $70 per week that he received from the insurance carrier was paid on behalf of his own employer, ...
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