Appellant Steve J. Johnson appeals the order of the trial court granting summary judgment to appellee Hames Contracting, Inc. Appellant brought suit, averring various personal injury and contract claims and seeking compensation for emotional injuries, against Hames for fraudulent and wrongful conduct in inducing appellant to perform hazardous jobs in an unsafe and dangerous manner. Appellant alleged, inter alia, Hames fraudulently and intentionally failed to inform him that he would be exposed to asbestos while cleaning and painting the boiler house at Georgia Power Company’s Plant Hammond facility. Appellant contends he thereafter orally contracted with Hames to paint the inside walls of the Plant Hammond boiler house, and that Hames subsequently breached the oral employment contract by firing him for raising job safety concerns. Hames moved for summary judgment contending appellant was an at-will employee and that his other claims were barred by the Georgia Workers’ Compensation Act. Held:
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1. “[A]t summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case.”
Lau’s Corp. v. Haskins,
2. Appellant asserts the trial court erred in ruling that appellant’s oral contract of employment was terminable at will. Appellee Hames’ affidavits met its burden under
Lau’s Corp.,
supra. Accordingly, appellant, “the nonmoving party [could not] rest on its pleadings, but rather [was required to] point to specific evidence giving rise to a triable issue.”
Lau’s Corp.,
supra at 491. Hames’ affidavits attest that no written employment contract was entered. The 12 Tennessee painters, including appellant, were not hired to perform a designated painting job or to paint for a specific period of time; the painters were hourly workers. The documentation opposing appellee’s summary judgment motion at best is uncertain and to an extent self-contradictory. Painter German testified at the OSHA hearing that Hames called the painters’ union and said he needed twelve people to paint a ceiling; the job was going to last
at least
three weeks and
possibly
five weeks; subsequently, Hames’ foreman said the painters had done such a good job on the ceiling (which was finished the first week), that Hames was going to extend the job for two more weeks and let them paint the walls all the way down to the first floor (the painters were on the eighth floor at the time); German then opined that it would take four weeks to paint the walls and thus the duration of employment “would have been ... a total of five weeks.” At the OSHA hearing Hames’ foreman testified that he initially told the painters the job was for a duration of two weeks, but as Georgia Power reported it had extra money, “I told the guys . . . that they had done such a good job that they were going to [be kept] on a while longer.” In his filed deposition, apparently taken initially for discovery in a separate suit in federal court, German agreed that all the Tennessee painters “pretty much had one job” and that was “the painting . . . done inside the boiler house.” Thereafter, German testified that when Hames’ foreman subsequently authorized the painters to paint the “walls all the way down to the bottom floor,” the painters immediately started working on the walls. German also testified in his deposition that when the foreman called the Tennessee painters’ union office, he told German that he had a paint job involving the “painting of a ceiling,” and “he needed twelve men for
about
six weeks.” (Emphasis supplied.), To the extent that unexplained, contradictory witness testimony exists, within the meaning of
Gentile v. Miller &c., Inc.,
OCGA § 34-7-1 provides: “If a contract of employment provides that wages are payable at a stipulated period, the presumption shall arise that the hiring is for such period, provided that, if anything else in the contract indicates that the hiring was for a longer term, the mere reservation of wages for a lesser time will not control. An indefinite hiring may be terminated at will by either party.” Thus, under OCGA § 34-7-1, “an oral contract of employment for an indefinite period is terminable at will”
(Guinn v. Conwood Corp.,
Appellant’s reliance on
Lineberger v. Williams,
The trial court did not err in its construction of the terms of the oral contract of employment, as a matter of law, as creating “an employment at will as that is defined in OCGA § 34-7-1.” See generally
Travelers Ins. Co. v. Blakey,
3. Appellant contends on appeal that the trial court’s holding that the exclusivity provision of the Workers’ Compensation Act precludes appellant’s claims violates the equal protection clause of the Georgia Constitution. But see
Ga. Dept. of Human Resources v. Joseph Campbell Co.,
4. Appellant asserts “the trial court erred in ruling that injuries of a type not compensable under Georgia’s Workers’ Compensation Act are nonetheless barred by application of that Act’s exclusivity provision [OCGA § 34-9-11 (a)].”
(a) “Where applicable, the Workers’ Compensation Act provides the exclusive remedy to an employee injured ‘by accident arising out of and in the course of the employment.’ OCGA § 34-9-1 (4). Pursuant to OCGA § 34-9-281 (a), an occupational disease is considered to be a compensable, accidental injury. . . . [W]hen an employee’s injuries are compensable under the Act, he is absolutely barred from pursuing a common law tort action to recover for such injuries, even if they resulted from intentional misconduct on the part of the employer. . . . The Supreme Court’s statement in
Bright v. Nimmo,
Appellant, however, argues that certain of his claims do not seek redress for a current or future physical injury due to accident, but rather seek a non-physical redress for financial injury. See generally
Cline v. Aetna Cas. &c. Co.,
Superb Carpet Mills v. Thomason,
(b) Appellant averred that appellee and Georgia Power engaged in a civil conspiracy (see generally
Jim Walter Homes v. Roberts,
(c) Appellant averred certain claims of intentional infliction of emotional distress by appellee and made certain contentions in support thereof in a response to interrogatories. Generally, a response to interrogatories can be submitted in opposition to a movant’s affidavit in support of summary judgment. OCGA § 9-11-56 (e). However, appellant’s verification of his response to the first interrogatories of Georgia Power, in addition to swearing that the information supplied in his response to the interrogatories is true and correct to the best of his knowledge pertinently provided that “the word usage and sentence structure [in said response to interrogatories] may be that of the attorney assisting in the preparation of the response to interrogatories and does not necessarily purport to be the precise language of the executing party.” The Civil Practice Act requires “a party to answer personally his opponent’s interrogatories under oath,” and counsel cannot answer them for the party.
Gregory v. King Plumbing,
Additionally we conclude claims of intentional infliction of emotional distress, under the attendant circumstances, have been barred. (See Division (4a) above.) Even when “ ‘an injury is not
compensable
under the act does not necessarily mean it is not within the
purview
of the act’ ” for purposes of the exclusivity provisions of the act. See generally
Bryant,
supra at 772 and concurring opinion; cf.
Ervin v. Great Dane Trailers,
Appellant’s various contentions in support of his three enumerations of error are without merit.
Judgment affirmed.