Lavender v. Spetalnick, 62759
| Decision Date | 26 January 1982 |
| Docket Number | No. 62759,62759 |
| Citation | 289 S.E.2d 291,161 Ga.App. 75 |
| Parties | LAVENDER v. SPETALNICK et al. |
| Court | Georgia Court of Appeals |
N. Forrest Montet, Atlanta, for appellant.
Stuart Finestone, Wayne Cardon, Atlanta, for appellees.
Lavender suffered an on-the-job injury on April 16, 1972; on August 7, 1973 she received a final award from the full board of the Georgia Board of Workmen's Compensation against her former employer, Ronotto, Inc. Ronotto, Inc. did not have workers' compensation insurance and Lavender was unable to collect her award.
On March 9, 1981 Lavender sued Ronald and Marjorie Spetalnick seeking to recover the amount of her award against Ronotto, Inc. on the theory that the Spetalnicks were the agents to procure workers' compensation insurance for Ronotto, Inc., and had failed to do so. Lavender alleges that the failure to procure insurance was a breach of a statutory duty owed to her. Our Supreme Court has recently recognized such a cause of action in Samuel v. Baitcher, 247 Ga. 71, 274 S.E.2d 327 (1981), reversing this Court's decision in Samuel v. Baitcher, 154 Ga.App. 602, 269 S.E.2d 96 (1980).
The trial court held that Lavender's suit was barred by the statute of limitation and granted the Spetalnicks' motion to dismiss. We affirm.
Appellant contends the trial court erred in dismissing her complaint because the Supreme Court's decision in Samuel v. Baitcher, supra., breathed life into her nine year old claim. We do not agree. Samuel v. Baitcher recognized a cause of action for personal injury against the agent of an employer who failed to procure workers' compensation insurance on the theory of negligent failure to perform a statutory duty. Similarly, Lavender's cause of action arose upon a breach of duty by her former employer's agents to procure workers' compensation insurance.
Appellant's final award from the Workmen's Compensation Board was made payable over a 400 week period. Appellant contends that the case is analogous to an entire contract for a stated sum payable in installments, and that her damage did not fully accrue until the failure to pay the final 400th installment, at which time the statute of limitation began to run. In an action for personal injuries based upon alleged negligence of the defendant, the statute of limitation commences to run from the breach of the duty, not from the time when the extent of the resulting injury is ascertained. Brewer v. Southern Gas Corp., 90 Ga.App. 81, 82, 82 S.E.2d 171 (1954); Lankford v. Trust Co. Bank, 141 Ga.App. 639, 640, 234 S.E.2d 179 (1977). The statute of limitation for personal injury actions is two years. Code Ann. § 3-1004.
In its November 20, 1972 award, the ...
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McAuley v. Wills
...begins to run from the breach of duty and not when the extent of the resulting injury is ascertained. Lavender v. Spetalnick, 161 Ga.App. 75, 76, 289 S.E.2d 291 (1982) and cits. However, it has also been held that in a continuing tort a cause of action does not accrue so as to cause the sta......
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McAuley v. Wills
...completed at a time when the afterborn infant was not yet conceived and thus was neither sui generis nor sui juris. Lavender v. Spetalnick, 161 Ga.App. 75, 289 S.E.2d 291. Inasmuch as the tort against Mrs. McAuley was inflicted and completed in March, 1979, the statute of limitations as to ......
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Myers v. Wilson
...Baitcher, 247 Ga. 71, 274 S.E.2d 327 (1981). The case at bar falls within the ambit of this cause of action. In Lavender v. Spetalnick, 161 Ga.App. 75, 289 S.E.2d 291 (1982), this court held that such a cause of action is governed by the two-year statute of limitation for personal injury ac......
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Workers' Compensation - H. Michael Bagley, Daniel C. Kniffen, Katherine D. Dixon, and Marion Handley Martin
...Samuel v. Baitcher, 247 Ga. 71, 274 S.E.2d 327 (1981); Myers v. Wilson, 167 Ga. App. 340, 306 S.E.2d 401 (1983); Lavender v. Spetalnick, 161 Ga. App. 75, 289 S.E.2d 291 (1982). 36. The exclusive remedy doctrine does not prevent an employee from suing in tort to recover damage to property, s......