Security Ins. Group v. Plank

• Decision Date: 30 January 1975
• Docket Number: No. 50081,No. 3,50081,3
• Citation: Security Ins. Group v. Plank, 212 S.E.2d 471, 133 Ga.App. 815 (Ga. App. 1975)
• Parties: SECURITY INSURANCE GROUP et al. v. Mable L. PLANK
• Court: Georgia Court of Appeals

Page 471

212 S.E.2d 471

133 Ga.App. 815

SECURITY INSURANCE GROUP et al. v. Mable L. PLANK.

No. 50081.

Court of Appeals of Georgia, Division No. 3.

Jan. 30, 1975.

Savell, Williams, Cox & Angel, John M. Williams, A. Cullen Hammond, Atlanta, for appellants.

Mundy & Gammage, E. Lamar Gammage, Jr., Cedartown, for appellee.

Syllabus Opinion by the Court

DEEN, Presiding Judge.

Fred Plank, an employee of Perry G. Smith Co., was killed on a job site in Bartow County, Georgia, where he had been working for some three months. The employer and the employee were residents of Tennessee and the employment contract had been entered into in Tennessee. The employer, much of whose work was performed in other states, carried a workmen's compensation policy with the appellant insurer which insured its employees in whatever state an employment accident occurred, including Georgia.

A claim was filed by the widow with the Georgia Board of Workmen's Compensation. The hearing director denied the claim because the employer did not have, as required by Code Ann. § 114-107, five or more employees regularly in service in the same business within this state. On appeal the full board reversed, citing Code § 114-607 to the effect that 'an insurer who issues a policy of compensation insurance to an employer not subject to this Title shall not plead as a defense that the employer is not subject to the Title; and an insurer who issues to an employer subject to this Title a policy of compensation insurance covering an employee or employees ordinarily exempt from its provisions shall not plead the exemption as a defense.' The board then awarded compensation, and this decision was affirmed on appeal to the superior court. Held:

1. The insurer is estopped, after having extended insurance coverage to nonresident employees of this nonresident company, after an otherwise compensable accident occurs in this state, to defend on the ground that the employer is not subject to the Georgia compensation law generally, or that although subject, it is exempt from its provisions because of the fact that during certain weeks it had less than the required number of employees working in Georgia. It is the clear purpose of Code § 114-607 to provide that coverage, once granted, shall be effectual, although in circumstances where it would not otherwise be obligatory for the employer to come under the act. Cf. Hunter v. Employers Liability Ins. Co., 54 Ga.App. 197, 187 S.E. 209, aff. 184 Ga. 196, 190 S.E. 598.

2. It should further be noted that this is not a 'full faith and credit' case, and it is not urged that under Tennessee law, where the contract was made, the Tennessee compensation law would provide an exclusive remedy. In fact, under similar circumstances, Tennessee has recognized that where residence and employment contract converge in one state, and the accident happens in another, either state may have jurisdiction. U.S. Casualty Co. v. Standard Acc. Ins. Co., 175 Tenn. 559, 136 S.W.2d 504. We do not, therefore, have the same questions as those confronting the courts in Bradford Elec. Light Co. v. Clapper, 286 U.S. 145, 52 S.Ct. 571, 76 S.Ed. 1026 or Alaska Packers Assn. v. Industrial Acc. Comm. of Calif., 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044. The statement from pp. 547, 548 of the latter case 55 S.Ct. p. 524 is, however, applicable: 'Prima facie every state is entitled to enforce in its own courts its own statutes, lawfully enacted. One who challenges that right, because of the force given to a conflicting statute of another state by the full faith and credit clause (or for any other reason), assumes the burden of showing, upon some rational basis, that of the conflicting interests involved those of the foreign state are superior to those of the forum. It follows that not every statute of another state will override a conflicting statute of the forum . ....