U.S. Fire Ins. Co. v. Day
| Decision Date | 08 October 1975 |
| Docket Number | No. 50922,No. 2,50922,2 |
| Citation | 136 Ga.App. 359,221 S.E.2d 467 |
| Parties | UNITED STATES FIRE INSURANCE COMPANY v. H. C. DAY |
| Court | Georgia Court of Appeals |
Shoob, McLain, Jessee, Merritt & Lyle, C. James Jessee, Jr., George E. Duncan, Jr., Atlanta, for appellant.
J. Richmond Garland, Garland & Garland, Atlanta, Benjamin B. Garland, Jackson, Benjamin M. Garland, Hall & Bloch, Macon, for appellee.
'You've got to accentuate the positive, eliminate the negative; latch on to the affirmative, don't mess with Mr. In-Between' were words of wisdom written by Savannah's famed song-writer, Johnnie Mercer. That lyric applies to the instant appeal where we are called upon to decide a single question: may in insurance company which carries both workmen's compensation and public liability coverage and shows by 'positive' affirmative evidence that it made its inspections of the insured's premises solely in its role as workmen's compensation carrier and 'negatives' any activity in its capacity as public liability insurer be held liable to its insured's employee for alleged negligently performed inspections of the insured's premises? Here there was no evidence to indicate any 'messing with Mr. In-Between.' Under the controlling decision of Mull v. Aetna Cas. & Surety Co., 120 Ga.App. 791, 172 S.E.2d 147 (certiorari dismissed as improvidently granted in 226 Ga. 462, 175 S.E.2d 552), our answer must be that the workmen's compensation carrier as the employer's alter ego is entitled to the tort immunity afforded the employer under the Workmen's Compensation Act.
But the common law immunity of a workmen's compensation carrier pertains only to the insurer's compensation coverage. Therefore, in Sims v. American Cas. Co., 131 Ga.App. 461, 206 S.E.2d 121, aff'd, 232 Ga. 787, 209 S.E.2d 61 it was held that where a workmen's compensation carrier insures an employer in a capacity other than compensation insurer, the carrier is then not immune with regard to actions stemming from acts done in connection with its other insurance policies.
In Sims, plaintiff brought suit against numerous insurers to recover for the wrongful death of her son, an employee of the insured. The complaint alleged that the employee was killed as a result of the insurers' negligent inspections of the premises upon which the deceased was employed. It was also alleged that one such defendant insurer, American Casualty Company, issued workmen's compensation insurance to the employer along with other coverages. The employee's death was compensable under the workmen's compensation laws. In a lengthy opinion our court reasoned that the carrier's immunity did not extend to suits 'arising out of its other insurance policies' or 'inspections made in connection therewith.' Thus it was held that the complaint set forth a claim for relief even though American Casualty Company occupied the relation of workmen's compensation carrier. But Sims specifically affirmed Mull v. Aetna Cas. & Co., supra. At page 474, 206 S.E.2d at page 130 Judge (now Justice) Hall wrote: 'We conclude now, as we recognized in Mull v. Aenta Cas. & Surety Co., 120 Ga.App. 791, 172 S.E.2d 147 cert. dismissed, 226 Ga. 462, 175 S.E.2d 552 that the compensation insurer enjoys the employer's immunity.'
Sims makes it clear that the common law liability of a workmen's compensation carrier arises from misfeasance in connection with policies other than workmen's compensation policies; and that, conversely, the common law liability of a workmen's compensation carrier does not arise from the mere writing of policies other than workmen's compensation policies. Thus, following Sims, we determine that an insurer which issues a workmen's compensation policy and also contracts for other types of coverages is not liable in tort for the negligent inspection of the insured's premises when done pursuant only to the workmen's compensation coverage.
In the light of this conclusion we examine the evidence submitted in connection with the defendant insurer's motion for summary judgment.
Plaintiff sued United States Fire Insurance Company in tort to recover for injuries sustained upon the premises of his employer. He alleged defendant issued to plaintiff's employer, Robertson Furniture Company, a workmen's compensation policy and a public liability policy; that defendant negligently inspected the premises of the insured pursuant to the provisions of the two policies and as a service performed in addition to the policies; and that defendant's negligent inspection was the cause of plaintiff's injuries. In its answer defendant admitted it had issued separate policies of workmen's compensation and public liability insurance to Robertson Furniture Company, and that it inspected the insured's plant on several occasions prior to the incident in question. But defendant asserted that all inspections were performed solely pursuant to its role as workmen's compensation carriers; furthermore, defendant denied that it was negligent in inspecting the premises or that it was liable to plaintiff for his injuries.
Following discovery, defendant moved for summary judgment. In support of its motion, defendant submitted the affidavits of three employees of Crum & Forster Insurance Companies (a group of insurance companies which includes defendant). In sum, the affiants averred all inspections of the insured's premises were undertaken in accordance with the insured's workmen's compensation policy only; that no inspections were made pursuant to the other policy written on the insured; that any recommendations sent to the insured related solely to the workmen's compensation coverage; and that reports of the inspections were neither directly nor indirectly related to defendant's role as general liability insurer.
Thereafter, plaintiff an affidavit in opposition to defendant's summary judgment motion. The affiant therein, a practicing attorney, averred that he graduated from the University of Georgia in 1970 with a B.B.A. degree in Risk Management and Insurance; that he was president of the University of Georgia Insurance Society and received an award as the outstanding risk management student at the University of Georgia; that during the summer of 1969, he participated in an internship program in which he worked in the Special Accounts Insurance Department of the Hartford Insurance Group in Hartford, Connecticut; that he familiarized himself with current standards of the insurance profession and consulted several books which he considered authoritative; and that it was his 'conclusion' that where an insurer writes workmen's compensation and general liability insurance on an insured, 'any inspection made pursuant to the...
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