Wilson v. Keheley & Co., Inc.

• Decision Date: 28 January 1986
• Docket Number: No. 71890,71890
• Citation: Wilson v. Keheley & Co., Inc., 341 S.E.2d 245, 177 Ga.App. 769 (Ga. App. 1986)
• Parties: WILSON v. KEHELEY & COMPANY, INC.
• Court: Georgia Court of Appeals

Page 245

341 S.E.2d 245

177 Ga.App. 769

WILSON v. KEHELEY & COMPANY, INC.

No. 71890.

Court of Appeals of Georgia.

Jan. 28, 1986.

Rehearing Denied Feb. 11, 1986.

J. Lansing Kimmey, III, Atlanta, for appellant.

Thomas P. Gresham, J. Michael Bishop, Mark G. Evans, Atlanta, for appellee.

BANKE, Chief Judge.

Harvey Porter was employed as a truck driver for the appellee from October of 1979 until his employment was terminated in May of 1983, during which time he was covered under appellee's group life insurance plan with Life Insurance Company of Georgia. Upon the termination of Porter's employment, the insurance company was notified, and he ceased to be covered under the plan. On June 9, 1983, Porter was rehired by the appellee. At that time he informed appellee's office manager that he had obtained insurance from another source and that he did not want to be covered under the group plan; and on June 17, 1983, Porter executed a written waiver of participation in the group life insurance plan. He was consequently not enrolled as a member of the plan when he was killed while driving appellee's truck on July 18, 1983.

Notwithstanding his waiver, payroll deductions were made for the insurance premium from Porter's pay for pay periods in June and July 1983. In his uncontroverted response to requests for admissions, appellee's personnel director states that these payroll deductions were made as a result of clerical error. The appellee sent a check to the appellant's estate for the amount deducted, which tender was rejected.

In this action, the administratix of Porter's estate, the appellant, seeks to recover the $10,000 benefits offered under the group insurance plan, alleging that the appellee was negligent in failing to have Porter covered under the plan. Appellant also contends that by deducting the amount of the premium from Porter's pay, the appellee entered into an agreement that Porter would be covered which it is now estopped to deny. This appeal follows the grant of appellee's motion for summary judgment. Held:

1. "To state a cause of action for negligence in Georgia, the following elements are essential: '(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff's legally protected interest as a result of the alleged breach of the legal duty.' [Cit.]" Bradley Center v. Wessner, 250 Ga. 199, 200, 296 S.E.2d 693 (1982). In this case, any duty of the appellee to enroll Porter in the group plan ended with Porter's...