William Morgan Porter brought suit against Buckeye Cellulose Corporation for wrongful discharge from employment and wrongful failure to pay disability benefits. The trial court granted Buckeye’s motion for summary judgment and Porter appeals.
The record reveals that appellant was employed by appellee, a subsidiary of the Procter & Gamble Company, from December 3, 1979, until his discharge on July 3, 1986. Appellant was not employed pursuant to a written employment contract or a contract for a definite term. Appellant was a participant in the Procter & Gamble Disability Benefit Plan (the Plan), an employee benefit plan funded by employee contributions and administered by a Board of Trustees (the Trustees) appointed pursuant to Plan provisions. On December 5, 1985, appellant was injured in an automobile accident not related to his job and was unable to work for some period of time thereafter. Appellant applied for and received Plan disability benefits for the period of December 5, 1985 through March 30, 1986, but his request for benefits from that time until the date of his discharge was denied by the Trustees on the ground that he was not totally disabled after March 30th. He was terminated by appellee for “excessive absenteeism” and failure to return to work after prior notice.
1. Appellant contends the trial court erred by granting summary judgment to appellee on his state law claim for wrongful discharge because material fact questions remain as to whether appellant was discharged without cause in violation of an oral contract of employment or was discharged because he applied for disability benefits.
“An indefinite hiring may be terminated at will by either party, with or without cause, and there is no cause of action against an employer for an alleged wrongful termination. [Cits.]”
Meeks v. Pfizer, Inc.,
2. Appellant also enumerates as error the trial court’s grant of summary judgment to appellee on claims raised in his original and amended complaints concerning alleged violations of the Employee Retirement Income Security Act (ERISA), 29 USC § 1001 et seq. Appellant argues the trial court erroneously concluded it lacked subject matter jurisdiction to entertain appellant’s ERISA claims because ERISA preempts any state law action.
(a) Liberally construed, appellant’s original complaint states a claim against appellee for failure to pay Plan disability benefits. The parties agree the Plan is covered by ERISA, and therefore, we must determine whether the claim for denial of benefits is preempted by ERISA, and if so, whether the trial court retained concurrent jurisdiction.
With the exception of four narrow exclusions not relevant to this action, Congress has mandated that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 USC § 1144 (a);
Whitaker v. Texaco, Inc.,
566 FSupp. 745, 748 (N.D. Ga. 1983). “The term ‘State law’ includes all laws, decisions, rules, regulations, or other State action having the effect of law,” 29 USC § 1144 (c) (1), and any state law having “a connection with or a reference to” an employee benefit plan covered by ERISA is preempted.
Shaw v. Delta Air Lines,
Appellant seeks to recover disability benefits he contends were due pursuant to the Plan provisions but wrongfully denied by appellee. This claim clearly relates to an employee benefit plan and thus is preempted by ERISA. 29 USC § 1144 (a);
Pilot Life Ins. Co. v. Dedeaux,
Nonetheless, the trial court also found that appellee was not a proper party to an action to recover disability benefits because appel
*820
lee was neither a party to nor a fiduciary of the Plan. The undisputed evidence reveals that appellant’s request for benefits was denied by the Trustees, and appellee is not a Trustee under the Plan. There is no evidence appellee had any responsibility for or control over the Trustees’ decision. Consequently, summary judgment in favor of appellee on this claim was proper because it made a prima facie showing of entitlement to judgment unrebutted by appellant, see
Leonaitis v. State Farm &c. Ins. Co.,
(b) The original complaint included only the claims for wrongful discharge and failure to pay disability benefits. Appellant later amended his complaint to assert claims against the Trustees for breach of Plan obligations by failing to pay benefits, wrongful discharge in violation of Plan rights, and breach of fiduciary duties, all of which were based on ERISA. Although appellee observes in its brief before this court that the amendment did not expressly include appellee as a defendant, appellee did move for summary judgment on the claims alleged in the amended complaint, and evidence was presented relating to those issues. The trial court apparently construed the complaint as amended to add the additional claims against appellee, which it was authorized to do pursuant to OCGA § 9-11-15 (b), and as a result “the pleadings are deemed amended to conform to the evidence presented . . . .”
DeLoach v. Foremost Ins. Co.,
We do agree with appellee that the trial court did not have subject matter jurisdiction over the remaining ERISA claims asserted by appellant which are applicable to appellee. The allegation that appellant was unlawfully discharged “for exercising his rights pursuant to the plan” falls squarely within the parameters of 29 USC § 1140, which proscribes discharge of a plan participant “for exercising any right to which he is entitled under the provisions of an employee benefit plan,” and thus is preempted by ERISA. 29 USC § 1144 (a); see
Kelly v. IBM Corp.,
573 FSupp. 366, 370-371 (E.D. Pa. 1983), aff’d mem., 746 F2d 1467 (3rd Cir. 1984);
Johnson v. Transworld Airlines,
However, though the trial court was correct in concluding that it had no subject matter jurisdiction, the court was incorrect insofar as the judgment was styled as a grant of summary judgment rather than a grant of a motion to dismiss. Although this point was not raised by either party, we are constrained to note that a motion for summary judgment is designed to test the merits of a cause of action and cannot be granted on a matter in abatement. C.
W. Matthews &c. Co. v. Capital Ford,
3. Appellant next enumerates as error the trial court’s denial of his motion to add a party. The record reveals that when appellant amended his complaint to allege additional ERISA claims as discussed in Division 2 (b), he also moved, pursuant to OCGA § 9-11-19, to add the “Trustees of the Procter & Gamble Disability Benefit Plan” on the ground that he could not obtain complete relief in their absence, but the trial court denied the motion.
“A person who is subject to service of process shall be joined as a party in the action if: (1) In his absence complete relief cannot be afforded among those who are already parties . . . .” OCGA § 9-11-19 (a). “Where an additional defendant is essential for a just adjudication among the existing parties . . . upon proper motion the trial court
should
grant the joinder.” (Emphasis supplied.)
Smith v. Foster,
4. Appellant also contends the trial court erroneously denied his motion to compel discovery. The record reveals that on September 26, 1987, appellant served interrogatories, a document production request, and a request for admissions upon appellee, and that appellee answered only the request for admissions within the statutory time limit. Appellant filed a motion to compel, in which he moved the court to strike appellee’s answer and enter a default judgment and award attorney fees, on December 30, 1987, and scheduled a hearing on the motion for January 26,1988. Appellee then served responses to the remaining discovery on January 25th, and the trial court subsequently denied appellant’s motion to compel.
OCGA § 9-11-37 (d) (1) provides that if a party fails to respond to discovery, upon motion the trial court
may
enter an order compelling discovery, imposing sanctions, or both, and that the court “shall require the party failing to act” or its counsel to pay attorney fees “unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” As a general rule, the drastic sanctions of default and dismissal should be invoked only when the failure to respond to discovery “ ‘is wilful, in bad faith or in conscious disregard of an order.’ [Cit.]”
Joel v. Duet Holdings,
5. Appellant’s final enumeration of error is that the trial court erred by granting appellee’s motion for attorney fees. We agree. A review of the record discloses that appellee filed a counterclaim for abusive litigation under the authority of
Yost v. Torok,
The damages recoverable under
Yost
consist of special damages
other than
attorney fees and expenses of litigation.
Ferguson v. City of Doraville,
Judgment affirmed in part; reversed in part; vacated in part; and case remanded with direction.