Travelers Ins. Co. v. McNabb

• Decision Date: 10 September 1991
• Docket Number: Nos. A91A1180,A91A1181,s. A91A1180
• Citation: 410 S.E.2d 788,201 Ga.App. 297
• Parties: TRAVELERS INSURANCE COMPANY v. McNABB et al. McNABB v. GRANNY'S OF ATLANTA, INC. et al.
• Court: Georgia Court of Appeals

Page 788

410 S.E.2d 788

201 Ga.App. 297

TRAVELERS INSURANCE COMPANY v. McNABB et al.

McNABB v. GRANNY'S OF ATLANTA, INC. et al.

Nos. A91A1180, A91A1181.

Court of Appeals of Georgia.

Sept. 10, 1991.

Reconsideration Denied Sept. 25, 1991.

Certiorari Denied Nov. 1, 1991.

Irwin, Bladen, Baker & Russell, Thomas C. MacDiarmid, Atlanta, for Travelers.

Harriss, Hartman, Townley & Wharton, Robert A. Wharton, Jr., James A. Secord, Rossville, for McNabb.

Wilson, Strickland & Benson, N. Sandy Epstein, Anne W. Lewis, Atlanta, for Granny's of Atlanta and Nationwide Ins.

SOGNIER, Chief Judge.

We granted the application of Travelers Insurance Company, the workers' compensation insurance carrier for Winkler Sign Company, to appeal from the order of the Superior Court of Gwinnett County affirming the State Board of Workers' Compensation's award of benefits to Tommy Wayne McNabb. McNabb's cross appeal is brought contingent upon our reversal of the judgment of the superior court in the main appeal, and challenges that portion of the award which would allow Granny's of Atlanta, Inc. and its alter ego corporation, Dynamic Development, Inc. (collectively "Granny's"), a credit for funds it contributed to a settlement paid to McNabb in a tort suit should it become liable to McNabb under the Workers' Compensation Act as his statutory employer pursuant to OCGA § 34-9-8.

The record reveals that McNabb, an employee of Winkler Sign Company (Winkler) a Tennessee employer, was injured in the course of his employment with Winkler in Gwinnett County, Georgia. McNabb, who was erecting a sign on premises leased by Granny's for a restaurant it was building, suffered catastrophic injuries. He applied for workers' compensation benefits in Tennessee and, pursuant to an order of the Hamilton County, Tennessee, Chancery Court, was awarded medical benefits and the maximum allowable income benefits. Travelers Insurance Company, the carrier assigned by the Tennessee Assigned Risk Plan, had issued to Winkler a policy of workers' compensation insurance which was in effect at the time of the injury, and it paid the award.

McNabb subsequently filed a third-party tort action in Georgia against various defendants, including Granny's. A settlement agreement was reached in that action awarding McNabb $360,000, of which Granny's contributed $60,000. Travelers exercised its right under Tennessee law to be subrogated to McNabb's claims against the third parties, and recovered $80,000 of the tort settlement from McNabb, which represented reimbursement of the $40,000 in income benefits paid and $40,000 in medical benefits paid to that date by Travelers.

Thereafter, McNabb filed this workers' compensation claim in Georgia. Travelers conceded its obligation to continue paying medical benefits to McNabb under the Tennessee award, but contested its liability to cover Winkler, which had been adjudged bankrupt, for income benefits payable under Georgia, rather than Tennessee, law. The ALJ ruled that Travelers was responsible for the payment of Georgia workers' compensation income benefits to McNabb pursuant to its policy covering Winkler, but was entitled to a credit against the Georgia income benefits due for the amount of income benefits paid under Tennessee law. The Board affirmed the award of the ALJ insofar as it ruled that Travelers was obligated to pay Georgia income benefits, but disallowed the credit to Travelers on the ground that an employer's right to be subrogated to an employee's claim against a third party tortfeasor to the extent of the workers' compensation benefits paid had been repealed by statute in Georgia. See Ga.L.1972, pp. 3-4 (repealing former Ga.Code Ann. § 114-403). Reasoning that Travelers had recovered all the Tennessee benefits it had paid, and that recovery of those benefits by subrogation was not allowable under the law of this state, the Board ruled that Travelers must be required to pay Georgia income benefits as though, in essence, it had never paid Tennessee benefits. The superior court affirmed the Board's award, finding there was some evidence to support it.

1. We note initially that no question exists that Georgia had jurisdiction to adjudicate this claim because McNabb performed work in Georgia, Slaten v. Travelers Ins. Co., 197 Ga. 1, 6, 28 S.E.2d 280 (1943); Standard Acc. Ins. Co. v. Gulledge, 86 Ga.App. 493, 494(2), 71 S.E.2d 571 (1952), and Travelers has stipulated to Georgia jurisdiction. Granny's, however, contends in its briefs, without enumerating it as error, that although the superior court held otherwise, Travelers' notice of appeal was untimely, thereby depriving this court of jurisdiction over the appeal.

Since a proper and timely notice of appeal is an absolute requirement to confer jurisdiction on this court, see Moncrief v. Tara Apts. Ltd., 162 Ga.App. 695, 293 S.E.2d 352 (1982), and given that "[r]ule 32 (d) of this court requires us to consider a lack of jurisdiction 'whenever and however' the lack of jurisdiction may appear, [cit.]" Gale v. Hayes Microcomputer Prods., 192 Ga.App. 30, 31(3), 383 S.E.2d 590 (1989), we have both the duty and the obligation to inquire into our appellate jurisdiction.

OCGA § 34-9-105(b) provides, in pertinent part, that an appeal from a decision of the board may "be brought by either party upon ten days' written notice to the other before the superior court for a hearing upon [the] record, subject to an assignment of the case for hearing by the court; provided however, if the [superior] court does not hear the case within 60 days from the date the notice of appeal is filed with the board, the decision of the board shall be considered affirmed by operation of law unless a hearing originally scheduled to be heard within the 60 days has been continued to a date certain by order of the court." In the case sub judice the record shows that although Travelers properly scheduled a hearing on its appeal in the superior court for November 7, 1990, which was within 60 days from the filing of the notice of appeal, ten days' written notice was not given to the other parties. Consequently, when Travelers alone appeared at the scheduled hearing, the hearing was continued orally by the superior court until December 19, 1990, and that rescheduling was memorialized in a written order entered November 14, 1990, after the 60-day limit.

Granny's argues that both Travelers' failure to follow the notice provisions of OCGA § 34-9-105 (b) and also the entry after the 60-day limit of the written order rescheduling the hearing resulted in automatic affirmance of the Board's award under that statute. Therefore, Granny's asserts, Travelers' appeal to this court, filed on February 21, 1991, was untimely pursuant to OCGA § 5-6-35 (d), since it was not filed within 30 days of November 10, 1990, the date of the automatic affirmance.

We do not find this contention persuasive. First, the Supreme Court has recently held that failure to follow the statutory ten-day notice procedure will not result in automatic affirmance under OCGA § 34-9-105 (b) where, as here, within the 60-day period, the superior court resets a scheduled hearing for a date outside the 60 days in order to rectify the problem. Felton Pearson Co. v. Nelson, 260 Ga. 513, 397 S.E.2d 431 (1990). The court reasoned that to rule otherwise "exalts the need for speedy disposition over fair treatment of the parties and the policy of reaching the merits of a controversy." Id. at 515, 397 S.E.2d 431.

Second, although OCGA § 34-9-105 (b) does require that the appeal filed with the Board and the ten-day notice given to the opposing party be "in writing," nothing in the statute suggests that this requirement applies to superior court orders continuing hearings. Thus, applying the maxim expressio unis est, exclusio alterius, see generally Department of Banking, etc., of Ga. v. Independent Ins. Agents, 158 Ga.App. 556, 559, 281 S.E.2d 265 (1981) rev'd on other grounds 248 Ga. 787, 285 S.E.2d 535 (1982), we conclude that OCGA § 34-9-105 (b) does not require that the superior court enter a written order within the 60-day limit to avoid automatic affirmance. Accordingly, as a hearing was scheduled within the 60-day period in this case and was rescheduled by a valid, albeit oral order of the superior court within that time, the statutory requirements were met, and the superior court did not err by finding that the Board's award was not automatically affirmed by operation of law. Travelers' application for leave to appeal to this court, having been filed within 30 days of the entry of the superior court order affirming the Board's award, was therefore timely.

2. Regarding the merits of the main appeal, Travelers contends the superior court erred by affirming the Board's award because there was no evidence to support the ALJ's finding that the policy issued by Travelers to Winkler provided coverage for benefits under Georgia law. Travelers maintains that the policy language clearly limited the policy to payment of benefits awardable under Tennessee law; that such a policy provision is valid in Tennessee, the site of the contract, and enforceable in Georgia; and that there is no evidence of fraud or deceit by Travelers so as to void this policy limitation. Accordingly, Travelers argues, if McNabb is entitled to Georgia income benefits, then Granny's, as McNabb's statutory employer under OCGA § 34-9-8, and its workers' compensation carrier, Nationwide Insurance Company, are responsible for paying them and thus Travelers should have been dismissed from the instant Georgia Workers' Compensation claim. (We note that Winkler has not appealed its liability, but its principals were never located.) We agree and reverse.

(a) The record clearly demonstrates that the policy in question limited coverage to benefits payable under Tennessee law. The record shows that the policy in question was issued in Tennessee through an independent Tennessee agent via...