U.S. Fidelity & Guaranty Co. v. Forrester
| Decision Date | 22 February 1973 |
| Docket Number | No. 27514,27514 |
| Citation | 230 Ga. 182,196 S.E.2d 133 |
| Parties | UNITED STATES FIDELITY & GUARANTY COMPANY et al. v. Verdeen FORRESTER et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
Where the evidence shows that the deceased could be found to be an employee of both the general contractor and the subcontractor, or either, an action against the general employer for recovery under the Workmen's Compensation Act is proper.
Hopkins & Gresham, H. Lowell Hopkins, Atlanta, for appellants.
Robert E. Andrews, Gainesville, for appellees.
We granted certiorari in this case, United States Fidelity & Guaranty Company v. Forrester, 126 Ga.App. 762, 191 S.E.2d 787, in order to reconcile an apparent conflict between it and an earlier decision of the Court of Appeals, Forrester v. Scott, 125 Ga.App. 245, 187 S.E.2d 323, and to clarify the rulings made therein in regard to actions against general and special employers to recover workmen's compensation.
The earlier decision (Forrester v. Scott, 125 Ga.App. 245, 187 S.E.2d 323, supra) dealt with a wrongful death action against the subcontractor brought by the mother of the deceased employee. The mother alleged that her son's death, while engaged in the performance of his duties at the bottom of a sewer excavation, was caused by the defective and unsafe condition of the construction of the excavation by the defendants, who were subcontractors of the general employer.
Six judges concurred in the majority opinion, which affirmed the trial court's grant of summary judgment in favor of the subcontractor, based upon the ground that a claim against the general employer was then pending before the State Board of Workmen's Compensation.
The majority reasoned that although under the facts the deceased was a general employee of the general contractor, he was at the time of his death a 'borrowed' employee of the subcontractor, and that his mother could recover from either employer, or both; but that since the injury sustained was compensable under the Workmen's Compensation Act, and the mother had elected to proceed against the general employer, a common law suit on the tort would not be maintainable against either the general or the special employer.
The two dissenting judges (Judge Clark did not participate, having been sworn in the day the case was decided) argued that before a summary judgment could be granted holding that the deceased was not the employee of the general employer at the time of his death, three tests or requirements set forth in Fulghum Industries, Inc. v. Pollard, 106 Ga.App. 49, 52, 126 S.E.2d 432, must be applied and met. Thus to determine that the deceased was a 'loaned' employee it must be shown 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.
The later case (United States Fidelity & Guaranty Company v. Forrester, 126 Ga.App. 762, 191 S.E.2d 787, supra) involves the workmen's compensation claim. The majority opinion affirms the finding of a deputy director, approved by the full board of the State Board of Workmen's Compensation and affirmed by the Superior Court of Hall County, holding that based upon the evidence the general employer had the right of control over the deceased and entering an award requiring the general contractor and its carrier, United States Fidelity & Guaranty Company, to pay compensation.
Although the appellants based their appeal on several grounds, alleging in essence that the facts did not support the award, that there was not sufficient evidence to warrant the award, and that the award was contrary to law, the majority, consisting of three judges, stated that the sole question involved was 'whether or not the survivor of an employee loaned to a subcontractor and killed while in the course of and as a result of his employment, may recover from his general employer.' 126 Ga.App. 762, 191 S.E.2d 787. The three tests set forth in the dissent in the earlier wrongful death case were applied...
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