COKER v. DEEP SOUTH SURPLUS OF GEORGIA, INC., 258 Ga. App. 755

Johnson, Presiding Judge. Nicholas Coker, an employee of Mayo Company, Inc., was using a hydraulic shearing machine to cut metal sheets when fingers on both of his hands were cut off. Coker sued, among others, Deep South Surplus of Georgia, Inc., alleging that it had negligently conducted safety inspections of Mayo’s premises prior to the incident. Deep South moved for

summary judgment on the ground that it had inspected the premises solely as part of Mayo’s workers’ compensation program and therefore it is immune from the lawsuit under OCGA § 34-9-11 of the Workers’ Compensation Act. The trial court granted the motion. Coker appeals, claiming that Deep South is not entitled to immunity. We agree with Coker that Deep South is a third party that is not immune from the action, and we therefore reverse the judgment of the trial court. OCGA § 34-9-11 (

a) establishes that the rights and remedies granted to an employee by this

chapter shall exclude all other rights and remedies at common law or otherwise on account of the employee’s injury, “provided, however, that no employee shall be deprived of any right to bring an action against any third-party tort-feasor, other than an employee of the same employer or any person who, pursuant to a contract or agreement with an employer, provides workers’ compensation benefits to an injured employee.” OCGA § 34-9-1 (3), which defines the term “employer,” provides: “If the employer is insured, this term shall include his insurer as far as applicable.” In other words, the workers’ compensation insurer is considered to be the alter ego of the actual employer for purposes of immunity, and an employee, who is eligible for workers’ compensation may not otherwise recover against his employer or the employer’s alter ego.

In the instant case, American National Insurance Company was the workers’ compensation carrier for Coker’s employer, Mayo. Deep South was not Mayo’s workers’ compensation carrier and had no contract with Mayo to provide workers’ compensation benefits to injured employees. Rather, Deep South was hired by American National to conduct safety inspections of Mayo’s premises. Because the Workers’ Compensation Act is in derogation of common law, its provisions must be strictly construed.

Strictly construing the above-emphasized immunity provision of OCGA § 34-9-11 (a), in order for Deep South to be immune from suit, it must have had a contract or agreement with the employer, Mayo, to provide workers’ compensation benefits to an injured employee. Since there is no such contract, Deep South is not Mayo’s alter ego and is not immune from suit. Instead, Deep South is a third party, and under the strict construction of the statute, Coker shall not be deprived of his right to bring an action against such a third party. Deep South cites the cases of Mull v. Aetna Cas. &c. Co., Fred S.

James & Co. of Ga. v. King, and Hinkley v. Bldg. Material Merchants Assn. of Ga. for the proposition that a service agency which performs safety inspections is entitled to the same tort immunity as the employer and the workers’ compensation carrier. Those cases, however, are factually different from the instant case and do not provide a basis for extending immunity to a third party such as Deep South. The Mull case was decided under a version of the Georgia Code that did not contain the immunity clause now contained in OCGA § 34-9-11 (a).

When Mull was decided in 1969, it relied in part on Code § 114-103, the predecessor to OCGA § 34-9-11. At that time, Code § 114-103 set forth only the exclusive remedy provision now found in OCGA § 34-9-11 (a), but it did not contain the current Code’s immunity provision. Because the strict construction of that statutory immunity provision is the dispositive issue in the instant case, the Mull opinion does not control this case. In Fred S. James & Co., the employer was self-insured and entered into a service agreement with Fred S.

James & Company, an insurance broker, to administer its workers’ compensation program. Under those circumstances, this court held that there is no logical reason why such an agency, which by contract administers and facilitates the payment of benefits by the self-insured employer, should not be included under the umbrella of immunity provided by the Workers’ Compensation Act. Likewise, in Hinkley the employer was self-insured, and it was not factually disputed that Building Material Merchants was the service agency administering the self-insured employer’s workers’ compensation program.

On that premise, this court relied on the holding in Fred S. James to find that Building Material Merchants was immune from suit. Unlike the employers in Fred S. James and Hinkley, the employer in the instant case, Mayo, is not self-insured. Moreover, while Deep South may be a service agency that inspected Mayo’s property, it had no contract of any sort with Mayo. Deep South had no contract with Mayo to conduct the safety inspections, and it certainly had no contract to administer Mayo’s workers’ compensation program or facilitate the payment of benefits.

Consequently, rather than supporting Deep South’s claim of immunity; the holdings in Fred S. James and Hinkley actually support the contrary conclusion that Deep South is a third party that does not fall under the umbrella of immunity provided by the Workers’ Compensation Act. Because Deep South is not entitled to immunity under the Act, the trial court erred in granting

summary judgment in its favor. The judgment of the trial court is therefore reversed. Judgment reversed. Smith, P. J., Eldridge, Ellington, Mikell, JJ, and Pope, Senior Appellate Judge, concur. Blackburn, C. J, dissents. (Emphasis supplied.) Drury v. VPS Case Mgmt. Svcs., 200 Ga. App. 540 (408 SE2d 809) (1991). MacKenzie v. Sav-A-Lot Food Store, 226 Ga. App. 32, 33 (1) (485 SE2d 559) (1997). 120 Ga. App. 791 (172 SE2d 147) (1969). 160 Ga. App. 697 (288 SE2d 52) (1981). 187 Ga. App. 345, 346 (370 SE2d 201) (1988). Fred S. James, supra at 697-698. Id. at 700. Hinkley, supra at 346. Id.