TYSON Et Al. v. SCOTTSDALE INDEMNITY COMPANY.
805 S.E.2d 138
| Ga. Ct. App. | 2017Background
- Howard Tyson worked intermittently for Hank Rowe (Shellmar Tree Service) removing limbs and cleaning job sites; on Sept. 11, 2014 Tyson was paid to clean up at a Sea Island job when a falling tree limb struck him, leaving him quadriplegic.
- Tyson sued Rowe for negligence and related claims; Rowe filed a third-party claim against his insurer, Scottsdale Indemnity Company, for denial of coverage.
- Scottsdale moved for summary judgment, arguing the commercial general liability policy excluded coverage for injuries to an employee, leased/temporary worker, volunteer, or anyone "hired or retained" by the insured where injury "arises out of and in the course of" employment; the trial court granted summary judgment for Scottsdale.
- Tyson and Rowe appealed, arguing (1) Tyson was not excluded because he was standing away from the cutting area and on a break; (2) genuine issues exist about Rowe’s knowledge of exclusions and alleged agent representations that policy covered "anyone," warranting reformation; and (3) the policy violated Georgia’s Surplus Line Insurance Law.
- The appellate court viewed the evidence favorably to Tyson/Rowe but found undisputed facts that Tyson was hired/retained and injured on the worksite during work hours while performing job-related duties (or waiting to), bringing his injury "arising out of and in the course of" employment.
- The court also held Rowe was bound by policy terms (actual notice to his retail agent sufficed), there was no evidence Scottsdale authorized the retail agent to bind or that Scottsdale held him out as its agent, and the surplus-lines formalities in dispute were satisfied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tyson is excluded from coverage because injury arose out of course of employment | Tyson: he was off to the side, on a (momentary) break and not performing a task when struck | Scottsdale: Tyson was hired/retained and was on the jobsite during work hours awaiting duties; injury arose out of and in the course of employment | Held: Exclusion applies — injury arose out of and in the course of employment/retention |
| Whether Rowe can reform policy based on agent’s alleged representation that policy covered "anyone" | Rowe: retail agent Langston told him the policy covered "anyone," and Rowe never saw full policy | Scottsdale: No evidence Langston had authority to bind insurer or that Scottsdale held him out as its agent; insured is charged with knowledge of policy | Held: No genuine issue; reformation unjustified; insured bound by policy terms and agent notice to retailer charged to Rowe |
| Whether actual delivery/notice of exclusions to Rowe was required | Tyson/Rowe: uncertainties whether Rowe received the policy or exclusion language | Scottsdale: policy was delivered to retail agent; notice to agent is notice to principal; insureds are chargeable with contents | Held: Delivery to retail agent was actual notice to Rowe; insured bound by exclusions |
| Whether policy violates Georgia Surplus Line Insurance Law making it unenforceable | Tyson/Rowe: policy allegedly failed to comply with OCGA §§ 33-5-26, 33-5-27 requirements | Scottsdale: policy bears surplus-line certification, broker name, disclosure form; policy was delivered to agent | Held: Statutory formalities satisfied; failure to comply (if any) does not render policy unenforceable; summary judgment affirmed |
Key Cases Cited
- Royal v. Ga. Farm Bureau Mut. Ins. Co., 333 Ga. App. 881 (Georgia Ct. App.) (contract construction; contract construed as whole)
- SCI Liquidating Corp. v. Hartford Fire Ins. Co., 272 Ga. 293 (Ga.) (defining "arising out of" and "in the course of" in employment context)
- Miles v. Brown Transp. Corp., 163 Ga. App. 563 (Ga. Ct. App.) (injuries during working hours on employer premises presumptively arise out of and in the course of employment)