Travelers Ins. Co. v. Southern Elec., Inc., A93A0823
| Decision Date | 07 July 1993 |
| Docket Number | No. A93A0823,A93A0823 |
| Citation | 434 S.E.2d 507,209 Ga.App. 718 |
| Parties | TRAVELERS INSURANCE COMPANY v. SOUTHERN ELECTRIC, INC. |
| Court | Georgia Court of Appeals |
Irwin, Bladen, Baker & Russell, Thomas C. MacDiarmid, Atlanta, for appellant.
Wilson, Strickland & Benson, Warner R. Wilson, Jr., Lydia E. Barker, Atlanta, for appellee.
Appellant, the workers' compensation carrier of a statutory employer under OCGA § 34-9-8(a), brought this action pursuant to OCGA § 34-9-8(b) to recover payments made to and on behalf of appellee's injured employee. The trial court granted summary judgment for appellee, ruling that appellant was not entitled to indemnification because appellant did not insist that the injured employee pursue a formal claim against appellee before it provided coverage.
Viewing the record in a light most favorable to appellant as the nonmovant on a motion for summary judgment, it appears that LCP Enterprises, Inc. ("LCP"), appellant's insured, was general contractor on a project. Pursuant to an agreement between LCP and appellee, appellee was to perform the electrical work on the project. When asked about workers' compensation coverage, appellee represented that it had its own; thus, LCP made no deductions for workers' compensation from payments made to appellee prior to the accident involved in this case. One of appellee's workers was seriously injured in an accident that was undisputedly work related. Appellant investigated the accident and learned that, despite appellee's continued representations to the contrary, appellee had no workers' compensation insurance. Appellee was aware of the injury and was aware of and participated in appellant's investigation. Based on its investigation and awareness that appellee had no insurance, appellant approved coverage and began providing benefits, even though the injured worker did not first institute proceedings against appellee. Appellant then brought this suit against appellee for indemnification.
1. Appellant argues that the trial court erred in ruling that its action for indemnification was barred by the worker's failure to pursue a formal claim against appellee. A general contractor on a project is liable for compensation to an employee of its subcontractor injured in the course of his work on the project. OCGA § 34-9-8(a). However, the general contractor who pays such compensation is then entitled to recover the amount paid from the immediate employer, the subcontractor. OCGA § 34-9-8(b). Moreover, "[e]very claim for compensation under this Code section shall be in the first instance presented to and instituted against the immediate employer." OCGA § 34-9-8(c). Appellee asserts that the language quoted from subsection (c) "clearly" establishes a condition precedent to the general contractor's right to recover under subsection (b). We do not agree that (b) and (c) are so intertwined that the language of (c) clearly requires the institution of a formal claim against the immediate employer before the general contractor is entitled to recover under (b); nor do we think the language of (c) should be interpreted to create such a condition precedent. Franks v. Avila, 200 Ga.App. 733(1), 409 S.E.2d 564 (1991). The section does this by making parties other than the worker's immediate employer responsible if the immediate employer does not provide coverage. However, it then protects those other parties by providing for indemnification and by stating that the worker must seek recovery from his immediate employer first. See McCormick v. Kitchens, 59 Ga.App. 376, 379, 1 S.E.2d 57 (1939) (). Essentially, appellee invites us to paradoxically turn one of the protections the statute provides the statutory employer into a condition precedent to the availability of the other. We decline this invitation.
The purpose of the Workers' Compensation Act is to alleviate the suffering of injured workers and their families by providing immediate and certain financial assistance, regardless of whether the injury resulted from the fault of the employer, as long as the injury arose out of and in the course of...
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