Underwood v. Burt

• Decision Date: 04 December 1987
• Docket Number: No. 75007,75007
• Citation: 185 Ga.App. 381,364 S.E.2d 100
• Parties: UNDERWOOD v. BURT.
• Court: Georgia Court of Appeals

Page 100

364 S.E.2d 100

185 Ga.App. 381

UNDERWOOD v. BURT.

No. 75007.

Court of Appeals of Georgia.

Dec. 4, 1987.

Rehearing Denied Dec. 17, 1987.

Certiorari Granted Feb. 12, 1988.

T. Cullen Gilliland, John B. Austin, Atlanta, for appellant.

Donald D. Smith, Marietta, for appellee.

BANKE, Presiding Judge.

Burt, a carpenter, was injured when the scaffolding from which he was working fell as it was being rolled to another location by a fellow employee and tipped over a loose two-by-four. He received workers' compensation from Rooker Construction Company, the prime contractor and the company then carrying him on its payroll. He then sued CC & B, the subcontractor, and Underwood, a CC & B employee who was the job supervisor and the one alleged by Burt to have overseen the erection of the scaffolding. Summary judgment was granted to CC & B but denied to Underwood. We then granted Underwood's application for an interlocutory appeal.

While Burt was carried on the payroll of Rooker at the time of the injury, he was working under the direction of CC & B's job supervisor, Underwood, and there was no supervisor for Rooker on site. At other times and on other projects, Burt had been carried on CC & B's payroll. On the project where Burt was injured, Rooker and CC & B had a written subcontract for CC & B to provide construction management for Rooker, the property owner and prime contractor. Rooker and CC & B shared officers and sometimes worked together on various projects, although CC & B also did work for other general contractors. When the two worked together, CC & B moved all of its carpenters to Rooker's payroll; however, Underwood always remained on CC & B's payroll.

In responding to the motions for summary judgment filed by CC & B and Underwood, Burt conceded that CC & B was entitled to immunity pursuant to the "loaned servant/loaned employee" doctrine. See United States Fidelity, etc., Co. v. Forrester, 230 Ga. 182, 196 S.E.2d 133 (1973); Bosch v. Perry, 169 Ga.App. 28, 29(1), 311 S.E.2d 481 (1983). The question before us is whether, if Burt is considered a "loaned employee" to CC & B, Underwood must be considered an "employee of the same employer" within the contemplation of OCGA § 34-9-11, so as to preclude suit against him as a third-party tortfeasor.

Section 34-9-11 provides that "[t]he rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee ... at common law or otherwise, on account of such injury ...; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tortfeasor, other than an employee of the same employer...." (Emphasis supplied.) The last phrase was added to the statute by Ga. Laws 1974, pp. 1143, 1144. The trial court, relying on Long v. Marvin M. Black Co., 250 Ga. 621, 300 S.E.2d 150 (1983), held that Burt and Underwood were not employees of the same employer within the contemplation of the code section. Held:

Both workers were clearly working under the direct control and supervision of the same employer at the time the injury occurred. Indeed, Underwood was Burt's immediate supervisor on the job. We hold that, under such circumstances, the two must be considered employees of the same employer within the contemplation of OCGA § 34-9-11. Accord Jarrard v. Doyle, 164 Ga.App. 339, 297 S.E.2d 301 (1982). See also Bexley v. Southwire Co., 168 Ga.App. 431, 432(1), 309 S.E.2d 379 (1983).

By definition, a borrowed servant is, at least temporarily, the actual employee of the "borrowing employer." For example, the borrowing employer would presumably bear vicarious liability for the acts of the borrowed servant precisely because those acts are performed for his benefit and under his direction and supervision. A borrowed servant is, then, even though temporarily, "an employee of the same employer" of any regular employee of the borrowing employer. Borrowed servants have been held by other jurisdictions to be fellow servants of the regular employees of the borrowing employer. See Forrester v. Kuck, 177 Mont. 44, 579 P.2d 756 (1978); Peterick v. State of Wash., 22 Wash.App. 163, 589 P.2d 250 (1978); Spanja v. Thibodaux Boiler Works, 2 So.2d 668 (La.App.1941). For these reasons, we hold in the present case that Underwood was entitled to summary judgment on Burt's claim.

The Supreme Court's decision in Long v. Marvin M. Black Co., supra, does not compel a contrary result, since the immunity provided by OCGA § 34-9-11 was invoked in that case on the basis of the "statutory employer" theory rather than the "loaned employee" theory. In other words, the two employees involved in that case 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.

Judgment reversed.

BIRDSONG, C.J., DEEN and McMURRAY, P.JJ., and CARLEY, SOGNIER and POPE, JJ., concur.

BENHAM and BEASLEY, JJ., dissent.

BEASLEY, Judge, dissenting.

I respectfully dissent.

While Burt agreed that CC & B was covered by the immunity provided by the "loaned servant/loaned employee" doctrine, see United States Fidelity etc. Co. v. Forrester, 230 Ga. 182, 196 S.E.2d 133 (1973), and Bosch v. Perry, 169 Ga.App. 28, 29(1), 311 S.E.2d 481 (1983), this does not dispose of the issue before us.

The fact that Burt is considered a "loaned employee" to CC & B for purposes of determining CC & B's immunity, does not mean that Underwood is thereby an "employee of the same employer" as provided in OCGA § 34-9-11, so as to preclude suit against him as a third-party tortfeasor.

The trial court's reliance on Long v. Marvin M. Black Co., 250 Ga. 621, 300 S.E.2d 150 (1983), in holding that the two were not employees of the same employer was appropriate. While it is true that Long's holding dealt with the statutory employer theory, the underpinnings of that theory and the loaned employee theory are very similar, if not identical. Both are intended to provide converage for injured employees...