Peavy v. McInvale

• Decision Date: 06 July 1989
• Docket Number: No. A89A0692,A89A0692
• Citation: Peavy v. McInvale, 384 S.E.2d 246, 192 Ga.App. 155 (Ga. App. 1989)
• Parties: PEAVY v. McINVALE, et al.
• Court: Georgia Court of Appeals

Page 246

384 S.E.2d 246

192 Ga.App. 155

PEAVY v. McINVALE, et al.

No. A89A0692.

Court of Appeals of Georgia.

July 6, 1989.

Roberts, Roberts & Ingram, Lawrence W. Roberts, Cordele, for appellant.

Darroch & Obenshain, Robert M. Darroch, Mark A. Barber, Atlanta, Wright & Wright, George P. Wright, Cordele, Perry, Walters & Lippitt, C. Richard Langley, Albany, for appellees.

BENHAM, Judge.

This is an appeal from the grant of summary judgment to appellees Sam McInvale and Forum Insurance Company (Forum), which was the liability insurance carrier for Trailer Transit, Inc., with whom McInvale and appellant Peavy had contracted separately (through Trailer Transit's agent, Modular Transport, Inc.) to "trip lease" their tractors. While driving his tractor pursuant to the trip lease, Peavy was injured in an accident involving McInvale and a third party. Peavy filed a personal injury action against McInvale, Forum Insurance Company, and the third party. Appellees moved for summary judgment, the issue being whether, under the trip leases, Peavy and McInvale, the owners/drivers of the tractors they had leased, were employees of or independent contractors for Trailer Transit. In a detailed and well-reasoned order, the trial court concluded that Peavy and McInvale were both statutory employees of Trailer Transit, and, as such, the Georgia Workers' Compensation Act barred appellant from pursuing his personal injury action against McInvale and Trailer Transit. See OCGA § 34-9-11; Farmer v. Ryder Truck Lines, 245 Ga. 734, 266 S.E.2d 922 (1980); Garrett v. Superior Trucking Co., 162 Ga.App. 558, 290 S.E.2d 528 (1982). Appellant claims error, but we affirm the trial court's decision.

1. Appellant argues that the contract provision which states that "[t]he parties intend to create by this Agreement the relationship of Carrier and Independent Contractor and not an Employer-Employee relationship. Neither Contractor nor its employees are to be considered employees of Carrier at any time under any circumstances or for any purpose ..." and the provision that appellant would determine the means and methods of all transportation services show that the relationship was not that of an employee and an employer. Garrett, supra, contained contract provisions similar to those upon which appellant relies, but, nevertheless, this court found that under applicable federal law relating to interstate motor carriers, those carriers "are deemed to be responsible for the acts of drivers operating any trucks under the name of the common carrier, and therefore the drivers are employees of the carrier." Id. at 559, 290 S.E.2d 528. Appellant would have us take the position that because Trailer Transit had no workers' compensation coverage, appellant should be allowed to sue him in tort for the injuries he suffered. We cannot take such a position. It is well established that "the statutory immunity from suit includes the statutory employer regardless whether that statutory employer had actually paid the workers' compensation benefits." Modlin v. Swift Textiles, 180 Ga.App. 726(2), 350 S.E.2d 273 (1986). Although appellant cannot pursue his tort claim, he is free to pursue his remedies under the Workers' Compensation Act. "The employer is bound for workers' compensation regardless of whether or not he carried insurance coverage." Hartford Ins. Group v. Voyles, 149 Ga.App. 517, 520, 254 S.E.2d 867 (1979)...