Long v. Marvin M. Black Co.
| Decision Date | 18 February 1983 |
| Docket Number | No. 39256,39256 |
| Citation | 250 Ga. 621,300 S.E.2d 150 |
| Parties | LONG v. MARVIN M. BLACK CO. et al. |
| Court | Georgia Supreme Court |
Wallace C. Clayton, Melodie H. Clayton, Austell, for Fred M. long.
James K. Lange, Savannah, for amicus curiae.
Henry D. Green, Robert G. Tanner, Atlanta, for Marvin M. Black Co. et al.
Certiorari was granted in this case to determine whether an employee of an independent subcontractor can maintain a personal injury action against an employee of the principal contractor (the injured employee's statutory employer), where the injured employee has received workers' compensation payments for the injury from the subcontractor. Relying on Wright Associates, Inc. v. Rieder, 247 Ga. 496, 277 S.E.2d 41 (1981); and Haygood v. Home Transp. Co., 244 Ga. 165, 259 S.E.2d 429 (1979), the Court of Appeals held that the action is barred, Long v. Black Co., 163 Ga.App. 633(2), 294 S.E.2d 641 (1982), and we granted certiorari. Rieder, Haygood, and the case before us involve a construction of two provisions of the Workers' Compensation Act, OCGA §§ 34-9-8, 34-9-11 (Code Ann. §§ 114-112, 114-103).
Under OCGA § 34-9-8 (Code Ann. § 114-103), the statutory employer provision, a claim for workers' compensation must be made in the first instance against the injured employee's immediate employer if that employer is subject to the Act. However, a principal or intermediate contractor (statutory employer) is liable for workers' compensation benefits to an employee injured while in the employ of its subcontractor engaged in the subject matter of the contract where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under the principal contractor's control or management. Collection of full compensation from one such employer bars recovery by the employee against any other employer.
Under OCGA § 34-9-11, "The rights and the remedies granted to an employee by [the Workers' Compensation Act] shall exclude all other rights and remedies of such employee ... [against his or her employer] at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tortfeasor, other than an employee of the same employer or any person who, pursuant to a contract or agreement with an employer, 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 the benefits." (Emphasis and matter in brackets supplied.)
The first exception to the third-party tortfeasor provision was added by amendment in 1974. Ga.Laws 1974, pp. 1143, 1144. The second exception was added by amendment in 1980. Ga.Laws 1980, pp. 1145, 1146. We read the second exception to the third-party tortfeasor provision as referring, possibly among others, to an insurance company providing workers' compensation benefits to an injured employee. See OCGA § 34-9-1(3). We do not read those separate amendments as providing immunity to "an employee of ... any person who ... provides workers' compensation benefits to an injured employee...." In the case before us, defendant Bruner provided no workers' compensation benefits to plaintiff Long, and hence Bruner can claim tort immunity only under the first exception.
Haygood v. Home Transportation Co., supra, involved a situation in which a principal contractor, Home Transportation Co., had paid workers' compensation benefits to Haygood, who was an employee of an independent subcontractor. We held that the employee of the subcontractor was a "statutory employee" of the principal contractor under OCGA § 34-9-8 and, for that reason, the wrongful death action being pursued by Haygood's widow against the principal contractor was barred by OCGA § 34-9-11.
Rieder, supra, involved a situation in which Rieder, an employee of an independent subcontractor, was injured and received workers' compensation benefits from the subcontractor. He then sued Wright Associates, Inc., the principal contractor, alleging that his injury was caused by the negligence of an employee of the principal contractor. We held that even though the principal contractor had not actually paid workers' compensation benefits, it was still a statutory employer of the subcontractor's employee under OCGA § 34-9-8 with a potential liability for workers' compensation payments. Therefore, we held that the principal contractor still enjoyed tort immunity.
The present case involves a situation in which Westinghouse Electric Company, an independent subcontractor, paid workers' compensation benefits to its injured employee, Long. Long then sued Marvin M. Black Company, the principal contractor, and Bruner, an employee of the principal contractor, alleging that Bruner's negligence in discharging a .22 caliber nail gun caused the plaintiff's leg injury.
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