Sprowson v. Villalobos

• Decision Date: 31 March 2020
• Docket Number: A19A2279
• Citation: 841 S.E.2d 453,355 Ga.App. 279
• Court: Georgia Court of Appeals
• Parties: SPROWSON v. VILLALOBOS.

355 Ga.App. 279

841 S.E.2d 453

SPROWSON

v.VILLALOBOS.

A19A2279

Court of Appeals of Georgia.

March 31, 2020

Reconsideration Denied June 3, 2020

Certiorari Denied December 21, 2020

Swift Currie McGhee & Hiers, Timothy Clark Lemke, Ashley Denise Alfonso, for Appellant.

Jones Boykin & Associates, Noble Louis Boykin Jr., for Appellee.

Brown, Judge.

In this interlocutory appeal, Nelson A. Sprowson II contends that he was entitled to summary judgment in his favor based upon the exclusive remedy provision in the Workers’ Compensation Act. See OCGA § 34-9-11. Specifically, that as the employee of a business using the services of a temporary help contracting firm, he cannot be held liable in tort to a temporary employee, who was injured while assigned to Sprowson's employer.

For the reasons explained below, we agree and therefore reverse.

"On appeal from an order granting or denying summary judgment, we conduct a de novo review, construing the evidence and all reasonable conclusions and inferences drawn therefrom in the light most favorable to the nonmovant." (Citation and punctuation omitted.) Smith v. Camarena , 352 Ga. App. 797, 797 (1), 835 S.E.2d 712 (2019). So viewed, the record shows that on March 1, 2013, Waste Pro USA, Inc. ("Waste Pro USA"), entered into a contract with True Blue Enterprises, Inc. d/b/a Labor Ready Southeast, Inc. ("Labor Ready"), under which Waste Pro USA compensated Labor Ready for providing temporary employees to perform work under the general or direct supervision of Waste Pro USA. On March 26, 2013, Labor Ready assigned Rudolfo Villalobos to work for Waste Pro of South Carolina, Inc. ("Waste Pro South Carolina"), under the "exclusive supervision" of Waste Pro South Carolina. Villalobos was injured while working as a crew member on a sanitation truck owned by Waste Pro USA and driven by Sprowson, an employee of Waste Pro South Carolina. According to Villalobos’ complaint, Sprowson negligently drove the truck in a manner that pinned him against a tree adjacent to the roadway. It is undisputed that Villalobos subsequently received workers’ compensation benefits from Labor Ready for the injuries he sustained.

Villalobos filed a tort action against Waste Pro USA, Waste Pro South Carolina, Waste Pro of Georgia, Inc., and Sprowson. All of the defendants subsequently moved for summary judgment asserting that Villalobos’ claims were barred by the exclusive remedy of the Workers’ Compensation Act with regard to Waste Pro USA, Waste Pro South Carolina, and Sprowson. Waste Pro of Georgia, Inc., asserted that it neither employed Sprowson nor owned or operated the truck driven by Sprowson. A State Court of Fulton County judge concluded "that OCGA § 34-9-11 does not bar Plaintiff from bringing a tort claim against Defendant Nelson A. Sprowson. However, OCGA § 34-9-11 does provide the exclusive remedy to the remaining Defendants."

Following the grant of summary judgment to the corporate defendants, the case was transferred to the State Court of Bryan County, where Sprowson resides. Sprowson attempted once more to obtain summary judgment in his favor in the new venue. Although the trial court denied his repeated attempts to obtain summary judgment in his favor, it granted him a certificate of immediate review, and this Court granted his application for an interlocutory appeal.

Sprowson contends that he is entitled to the benefit of the workers’ compensation bar to tort liability pursuant to OCGA § 34-9-11 (a), which provides, in pertinent part:

The rights and the remedies granted to an employee by this chapter shall exclude and be in place of all other rights and remedies of such employee ... and all other civil liabilities whatsoever at common law or otherwise, on account of such injury, loss of service, or death ... No employee shall be deprived of any right to bring an action against any third-party tort-feasor, 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 supplied.) Id. Sprowson correctly asserts that if he is considered "an employee of the same employer" as Villalobos, he cannot be held liable in tort. See Underwood v. Burt , 185 Ga. App. 381, 364 S.E.2d 100 (1987).

In Underwood , this Court concluded that "[a] borrowed servant is, then, even though temporarily, ‘an employee of the same employer’ of any regular employee of the borrowing employer." Id. at 382, 364 S.E.2d 100 (applying borrowed servant analysis to determine application of OCGA § 34-9-11 (a) ). In order for an employee to be a borrowed servant, "[t]he evidence must show that (1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control; and (3) the special master had the exclusive right to discharge the servant." (Citation and punctuation omitted.) Stephens v. Oates , 189 Ga. App. 6, 7 (1), 374 S.E.2d 821 (1988). "All three prongs of the test must focus on the occasion when the injury occurred rather than the work relationship in general." (Citation and punctuation omitted.) Preston v. Ga. Power Co. , 227 Ga. App. 449, 451 (1), 489 S.E.2d 573 (1997). With regard to the third prong of the test, the Supreme Court of Georgia has equated a special master's ability to "unilaterally discharge" a temporary employee with "the exclusive right to discharge" a servant. Six Flags Over Ga. v. Hill , 247 Ga. 375, 378 (1), 276 S.E.2d 572 (1981). See also Garden City v. Herrera , 329 Ga. App. 756, 760-762 (1), 766 S.E.2d 150 (2014) ; Preston , 227 Ga. App. at 452 (1), 489 S.E.2d 573.

In this case, Sprowson points to a contract between Labor Ready and Waste Pro USA, as well as deposition testimony and affidavits, to show that all three prongs of the borrowed servant test have been met as a matter of law. The contract provides that Labor Ready "will be solely responsible for selecting, hiring, disciplining, reviewing, evaluating and terminating its employees performing Services hereunder[,]" and that Waste Pro USA

understands that [Labor Ready] will not be providing supervision for its temporary employee(s) under the Agreement and that [Waste Pro USA] shall be responsible for adequately and reasonably supervising and directing the activities of [Labor Ready]’s temporary employee(s). ... [Waste Pro USA] agrees to provide site specific safety orientation and training to all [Labor Ready] temporary employee(s) prior to the start of work.

The contract further provides:

Although the right to hire, discharge or designate the classification of employees in accordance with its best judgment is reserved to [Labor Ready], [Labor Ready] shall nevertheless take responsible care in the selection of its work force, vendors and subcontractors, and procedures so as to maximize productivity, and to avoid slow-downs, work stoppages or other disruptive or concerted action of labor.

[Labor Ready] shall not assign to and shall remove from the performance of the Services any employee, person or party who in its opinion or in the opinion of [Waste Pro USA] fails to meet reasonable standards of experience, competency or comportment, or who by virtue of their behavior are or become a detriment to acceptable successful performance of the Services. [Labor Ready] shall ensure such person or party remains uninvolved with the Services.

Villalobos testified in his deposition that "when [he was] working for Labor Ready, [he] underst[oo]d that if the company [he] was working for didn't like the work [he was] doing they could send [him] away" and that he was required to do whatever the driver, Sprowson, told him to do on the job. A Labor Ready vice president averred in an affidavit that Labor Ready assigned Villalobos to work for Waste Pro South Carolina under Waste Pro South Carolina's "exclusive supervision." This undisputed evidence shows that all three prongs of the borrowed servant test are met and that Sprowson was "an employee of the same employer" as Villalobos under OCGA § 34-9-11 (a). Accordingly, he cannot be held liable in tort. See Underwood , 185 Ga. App. at 382, 364 S.E.2d 100.

We find no merit in Villalobos’ argument that a contrary result is required by the Supreme Court of Georgia's opinion in Long v. Marvin M. Black Co. , 250 Ga. 621, 300 S.E.2d 150 (1983). In Long , the Supreme Court of Georgia concluded that the immunity provided to an "employee of the same employer" does not apply when "the injured employee is an employee of a subcontractor which paid compensation benefits and the alleged tortfeasor is an employee of the principal contractor." Id. at 623, 300 S.E.2d 150. The fact that the principal contractor was also the statutory employer¹ of the injured employee did not make the injured employee and the tortfeasor employed by the statutory employer "employees of the ‘same employer’ within the meaning of OCGA § 34-9-11 [ (a) ]." Id. In so holding, it noted that ‘‘[t]he General Assembly used the words ‘the same employer,’ not the words ‘the immediate, intermediate or principal employer.’ " Id. The Supreme Court did not address the application of the borrowed servant doctrine to determine whether the tortfeasor was the "employee of the same employer," as the facts before it clearly did not warrant application of the borrowed servant doctrine. Its holding can therefore be distinguished on this ground. See Underwood , 185 Ga. App. at 382, 364 S.E.2d 100 (distinguishing Long in case applying borrowed servant doctrine because "the two employees involved in [ Long ] were not working under the control and supervision of the same employer when the accident occurred, but were merely working on the same construction project").

Likewise, Villalobos’ argument based upon a 1995 statutory change...