Sheriff’s Investigator Clark was killed while a passenger in a county-owned automobile being operated by his superior and supervising officer, Captain Williamson. Clark’s widow (appellant) claimed workers’ compensation benefits and later brought a common-law tort action against the administratrix of Williamson’s estate (appellee), who was granted summary judgment. The question is whether the tort claim is barred by the exclusive remedy provisions of the Workers’ Compensation Act, OCGA § 34-9-11 (a).
*330 Officers Clark and Williamson attended an evening barbecuе at a rural cabin in Wilcox County. The record does not establish whether the event was work related nor whether they were on duty during that evening. They left together “in a hurry,” with Williamson driving along thе dirt road “at a high rate of speed.” There is no indication whether they were then on official police business.
After apparently driving south on 1-75, they exited onto Georgia Highwаy 300 (a divided highway) and traveled west in the eastbound lane. A motorist on that road stated that she encountered a car traveling in the wrong direction “at a high rate of speed” shortly after 11:00 p.m. She was able to avoid it by swerving to her right and blowing her horn. After passing the vehicle, she looked in her rear view mirror and saw an explosion and fire. The woman called the Georgia State Patrol, which dispatched a trooper. The investigating officer determined that Williamson’s car had collided head-on with a tractor-trailer truck, killing both officers instantly. The truck driver reported that as he was driving on Highway 300 he saw the headlights of a car coming at him at a “high rate of speed,” in excess of the 55 mph speed limit. He tried tо take evasive action but was unable to avoid the collision.
Based on the nature and extent of damage to the vehicles, the absence of skid marks attributable to thе car, and the fact that it had traveled underneath the tractor portion of the rig, the trooper determined that the car “was running at a[n] excessive rate of speed,” which he estimated at 75 mph. He concluded that the truck driver did not contribute to the collision but instead that it resulted from Williamson’s speeding and driving on the wrong side of the road. It was shown tо be State Patrol policy to drive within the speed limit when not on an emergency.
The bodies were taken to a local hospital where blood was drawn for chemical analysis. Williamson’s blood alcohol level was .16 grams percent.
1. Relying on
Downey v. Bexley,
OCGA § 34-9-11 (a) provides: “Thе rights and the remedies granted to an employee by [the workers’ compensation laws, OCGA § 34-9-1 et seq.] shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that nо employee shall be deprived of any right to bring an action against any third-party tortfeasor, other than an employee of the same employer.....” In Downey and Davis, the Supreme Court held that the defense of co-em *331 ployee immunity does not extend to persons who hold a special professional relationship of trust with one who claims abuse of that trust.
Downey involved a complaint for medical malpractice, fraud, and deceit against a co-employee company physician who operated an employee health clinic at the employer’s рlace of business. It was alleged that the physician secretly monitored and intentionally concealed from his patients information that they had contracted lead dust poisoning in the workplace. The Court held: “[W]here a professional co-employee is charged with fraud, deceit, and violation of professional trust, he may be held liаble in tort for his wrongdoing to an injured co-employee.” Downey, supra at 125. The physician was not permitted to avoid liability by the co-employee doctrine of workers’ comрensation law. The reason is that “[a] professional person is liable for an abuse of the trust reposed in him by the public, provisions of the compensation act notwithstanding.” Id. at 126.
The Court followed Downey in Davis, a medical malpractice action against a company physician. Fraud and deceit were not alleged. There was evidence that the physician failed to follow the employer’s policies for administering medical care to patients experiencing chest pain, but also that he exercised his independent professional judgment in deciding not to perform an essential test. The patient died of a heart attack. The Court held that the co-employee’s medical malpraсtice claim was not barred by the exclusive remedy provisions of the workers’ compensation laws, because of the relationship of trust between physicians and patients.
The non-applicability of co-employee immunity illustrated in these cases rests on the professional relationship, which raised a unique duty of trust over and above thе duties of co-employees.
Davis,
supra at 157, made clear that “[t]he Workers’ Compensation laws were not intended to be a grant of immunity from professional malpractiсe actions.” See also
Drury v. VPS Case &c. Svcs.,
Captain Williamson occupied a position of public trust generally as а professional law enforcement officer, Ga. Const. 1983, Art. I, Sec. II, Par. I, but the rationale of
Davis
and
Downey
is limited to malpractice actions. It does not extend to his relationship, which was not an individual and particular fiduciary one, to his subordinate officer. He owed no unique duty to Clark. “The legislative intent of OCGA § 34-9-11 is clear. ‘This provision has been interpreted consistеntly to mean that, where the workers’ compensation law is applicable, it provides the employee’s exclusive remedy against his employer. (Cits.)’ [Cit.]”
Drury,
supra at 540. The exclusion extends not only to the
*332
employer but alsо to “an employee of the same employer.” OCGA § 34-9-11 (a). Accord
Mann v. Workman,
2. Clаrk’s widow further contends that Williamson’s estate is precluded from claiming immunity under the workers’ compensation laws because his wilful misconduct fell outside the scope of his employment.
First, both parties aver or admit in their pleadings that at the time of the collision, Williamson and Clark were both acting within the scope of their employment as county law enforcement officers. Cf.
O’Kelley v. Gates,
Neither OCGA § 34-9-17 nor OCGA § 34-9-1 (4) is applicable. The first provides an affirmative defense to the employer against a claim for compensation benefits where the injury proximately resulted from an injured employee’s wilful misconduct, including intоxication. This suit is not for workers’ compensation benefits.
The second leaves open a tort claim because it excludes workers’ compensation benefits for injuries “caused by the willful act of a third person directed against an employee for reasons personal to such employee, . . .” Id. See
Knight v. Gonzalez,
Appellant did not establish a factual basis for defeating the motion for summary judgment.
Lau’s Corp. v. Haskins,
Judgment affirmed.