Potts v. UAP-Ga. Ag. Chem., Inc

• Decision Date: 14 September 1998
• Docket Number: No. S97G1889.,S97G1889.
• Citation: 270 Ga. 14,506 S.E.2d 101
• Parties: POTTS et al. v. UAP-GA. AG. CHEM., INC. et al.
• Court: Georgia Supreme Court

506 S.E.2d 101

270 Ga. 14

POTTS et al. v. UAP-GA. AG. CHEM., INC. et al.

No. S97G1889.

Supreme Court of Georgia.

September 14, 1998.

Reconsideration Denied October 23, 1998.

John Michael Brown, Augusta, Stephen L. Ivie, Ashburn, for Kenneth Potts, Jr., Admr., at al.

Donald A. Sweat, Gardner, Willis, Sweat & Goldsmith, Albany, Todd S. Handelman, J. Kevin Buster, Carmen R. Toledo, Atlanta, for UAP-Ga. Ag. Chem., Inc., et al.

CARLEY, Justice.

Rusty LeBlanc became ill after cleaning chemicals for his employer, UAP-GA. AG. CHEM., INC. (UAP). During stays at two hospitals, LeBlanc was treated for chemical poisoning and for other possible conditions. One doctor, as part of the explanation for his decision to discontinue the treatment for chemical poisoning, stated that he had been reassured by David Register, the branch manager for UAP, that LeBlanc could not possibly have been exposed to any chemicals. LeBlanc eventually died and Potts, as administrator, and LeBlanc's widow, on behalf of herself and LeBlanc's minor child, ( Appellants) brought this wrongful death and survival action against UAP and Register (Appellees), alleging fraud and intentional infliction of emotional distress. The trial court granted summary judgment in favor of Appellees, holding that they are immune from suit pursuant to the exclusive remedy provision of the Workers' Compensation Act (Act), OCGA § 34-9-11. The Court of Appeals affirmed on the basis that there was no showing of any personal animosity between Register and LeBlanc unrelated to the conduct of UAP's business. Potts v. UAP-GA AG Chem, 227 Ga.App. 841, 846, 490 S.E.2d 432 (1997). We granted certiorari to consider whether the intentional torts allegedly committed off the worksite and at a time when LeBlanc was not engaged in any work activity can be considered to have arisen "out of and in the course of" his employment such that the exclusive remedy provision of OCGA § 34-9-11 applies.

Tort immunity is dependent upon the compensability of the injury under the Act. If the willful act of a third person is directed against an employee for reasons personal to such employee, then there is not a covered injury and, consequently, no tort immunity. OCGA §§ 34-9-1(4), 34-9-11(a); Hennly v. Richardson, 264 Ga. 355, 356(1), 444 S.E.2d 317 (1994). Whether an injury is compensable or only a non-compensable occurrence due to "reasons personal to" the employee is dependent upon whether the injury arose out of and in the course of the employment. Hennly v. Richardson, supra at 356(1), 444 S.E.2d 317. See also Helton v. Interstate Brands Corp., 155 Ga.App. 607, 608, 271 S.E.2d 739 (1980). It has long been established that the statutory requirements that the injury arise "out of" the employment and "in the course of" the employment both "`must concur before the work(ers') compensation act can apply to an injury to an employee. (Cit.)' [Cit.]" Garrett v. K-Mart Corp., 197 Ga.App. 374, 375, 398 S.E.2d 302 (1990). Thus, unless the alleged injury to LeBlanc arose "out of" and "in the course of" his employment with UAP, it arose from "reasons personal to" him and Appellees have no tort immunity for that non-compensable injury.

An injury arises "in the course of" employment when it occurs within the period of the employment, at a place where the employee may be in performance of [his or] her duties and while [he or] she is fulfilling or doing something incidental to those duties. [Cit.]

Hennly v. Richardson, supra at 356(1), 444 S.E.2d 317. "This statutory requirement relates to the time, place and circumstances under which the injury takes place. [Cit.]" Murphy v. ARA Services, 164 Ga.App. 859, 861, 298 S.E.2d 528 (1982). Therefore, the Court of Appeals erred by considering only evidence of personal animosity between Register and LeBlanc which was unrelated to the conduct of UAP's business. The record shows that the alleged fraud did not occur during the period of LeBlanc's employment, the hospital clearly was not a place where he performed employment duties, and he was not fulfilling or doing anything incidental to his employment duties. See Lee v. Middleton Logging Co., 198 Ga.App. 585, 402 S.E.2d 536 (1991). Compare Hennly v. Richardson, supra at 356(1), 444 S.E.2d 317. Thus, any damages resulting from the alleged fraud "do not arise `out of or in the course of the employment,' but rather, result from the intentional misconduct of the defendants subsequent to the physical injuries which gave rise to the original workers' compensation claim." Griggs v. All-Steel Bldgs., 209 Ga.App. 253, 256, 433 S.E.2d 89 (1993).

Georgia law provides a common law cause of action for fraud and other intentional torts committed by an employer or co-employee where the tortious "act is not an accident arising out of and in the course of employment and where a reasonable remedy for such conduct is not provided by the Workers' Compensation Act." Griggs v. All-Steel Bldgs., supra at 257, 433 S.E.2d 89. The Act does provide penalties for false or misleading statements made for the purpose of obtaining or denying benefits. However, those penalties are deposited in the general fund of the state treasury and, thus, do not constitute a reasonable remedy for the defrauded employee. OCGA §§ 34-9-18(b), (f), 34-9-19. Even if the Act permitted an employee to recover for the employer's or co-employee's fraud which exacerbates an initial...