R.E. Thomas Erectors, Inc. v. Brunswick Pulp & Paper Co.

• Decision Date: 04 September 1984
• Docket Number: No. 68329,68329
• Citation: 321 S.E.2d 412,171 Ga.App. 903
• Court: Georgia Court of Appeals
• Parties: R.E. THOMAS ERECTORS, INC. v. BRUNSWICK PULP & PAPER COMPANY.

Page 412

321 S.E.2d 412

171 Ga.App. 903

R.E. THOMAS ERECTORS, INC. v. BRUNSWICK PULP & PAPER COMPANY.

No. 68329.

Court of Appeals of Georgia.

Sept. 4, 1984.

James M. Thomas, Augusta, for appellant.

Karen M. Krider, Brunswick, Eugene C. Hicks, III, Charlotte, N.C., Amanda F. Williams, Philip R. Taylor, Brunswick, for appellee.

QUILLIAN, Presiding Judge.

This is an appeal from a grant of summary judgment.

Defendant-appellee Brunswick Pulp & Paper Co. (Brunswick) purchased some machinery used in the manufacture of paper called a suction couch roll from KMW-Johnson, Inc. (KMW), located in North Carolina. Brunswick contracted with defendant-appellant R.E. Thomas Erectors, Inc. (Thomas Erectors) to perform the installation of the couch roll in its plant. Brunswick also contracted separately with KMW to provide the services of a qualified erector to supervise the installation of the couch roll. Plaintiff Linton, an employee of KMW, was the qualified erector sent to Brunswick by KMW to supervise the installation. While Linton was performing this service, he was injured by a crane. Linton received workers' compensation benefits as an employee of KMW under the law of North Carolina. Linton and spouse then commenced this action against Brunswick and Thomas Erectors as joint third party tortfeasors under OCGA § 34-9-11. Thomas Erectors and Brunswick cross-claimed against each other seeking indemnity and other relief. Brunswick's motion for summary judgment on Linton's claim was granted on the ground that Brunswick was Linton's statutory employer under OCGA § 34-9-8 and thus immune from tort liability to Linton under OCGA § 34-9-11. Thomas Erectors brings this appeal. Held:

1. Brunswick's motion to dismiss the appeal is denied. "Judge Deen noted that to deny one joint tortfeasor the right to appeal a judgment in favor of another joint tortfeasor in a case in which both are defendants tends to subvert the Civil Practice Act's purpose of allowing the whole case to be tried at one time, and he surmised that the purpose of the 1972 amendment had been to correct this anomaly.... For the reasons stated by Judge Deen ... we now hold that the 1972 amendment to Code Ann. § 105-2012 [now OCGA § 51-12-32] eliminated the rule that a co-defendant in a tort action is without standing to appeal the grant of summary judgment to another co-defendant against whom he asserts a right of contribution." Merritt v. McCrary, 162 Ga.App. 825(1), 827, 292 S.E.2d 920 (1982).

2. We reverse.

The cases relied upon by the trial court in granting summary judgment and by Brunswick in this appeal, holding that an owner of premises is entitled to statutory employer status under OCGA § 34-9- 8, have been overruled by Modlin v. Black & Decker Mfg. Co., 170 Ga.App. 477, 317 S.E.2d 255 (1984), where we said: "Taking OCGA § 34-9-8 as a whole, the most reasonable conclusion is that the word 'principal' in subsections (a) and (b) refers to 'principal contractor.' Accordingly, owners or entities merely in possession or control of the premises would not be...