*1 Murray, concurs A95A1853and J., as to Case No. P. concurs only judgment and A95A1855. Nos. A95A1854 as to Case concurring specially. Presiding Judge, McMurray, duty nondelegable “right majority recognizes Since [subcontrac- the work those to direct and control builder-sellers prudent ordinarily employed that an tors] to extent them a fit control to build would exercise such direction builder workmanlike 721), p. opinion, (majority ante, structure,” [residential] duty under such exists is consider whether it not to fully Accordingly, I in Division and § concur summary judgment also concur Case No. A95A1853. reversal liability against fully de- of strict in Division and the absence fully A95A1855,1 In Case A95A1854and builder-sellers. Nos. fendant there evidence that cross-defendant with Division 3 that is no concur Douglas carpenter negligent Singletary, subcontractor, was L. thereby molding, or when piercing nailed the wall baseboard shoe he bathroom protected pipe unprotected inadequately behind or water correctly summary judgment Consequently, the sheetrock. Plumbing, granted respect him. R & R With cross-defendant my Inc., of failure to file OCGA it remains view that defense expert’s a motion can be raised for first time 9-11-9.1 affidavit (b) (6), holding Kalish, Hewett under OCGA 9-11-12 under the 233). Consequently, I 183, concur summary only respect partial judgment reversal Plumbing, judgment R as to & R Inc. 1996.
Decided March Barham, Dover, Bennett, Stone, Miller, Sherwood John R. & Seely. Bennett, for
Young, Thagard, Smith, Scott, Hoffman, Pearce Scott & H. Loyd Company, H. Johnson Inc. Construction II, Blackburn, Elliott, & R
Elliott W. G. W. Gus Elliott for & R Plumbing, Inc.
Langdale, Linahan, Linahan, Vallotton & J. for Powers. Willie A95A1861.ZURICH AMERICAN INSURANCE COMPANY
v. DICKS. Judge. Beasley, Chief Company, her Insurance for- June Dicks sued Zurich American employer’s mer related workers’ insurer. Dicks suffered a work- complaint, sounding tort, and filed a intentionally wrongfully terminated her medical Zurich summary thereby aggravating injuries. judg- Zurich moved for complaint ground ment on the that Dicks’ was barred the exclu- provision remedy sive court denied the of the Workers’ Act. The trial application
motion, and we Zurich’s *2 terlocutory appeal. disputed. September 26, 1990,
The facts are not On Dicks suf- injury, fered a work-related and Zurich authorized medical treatment. physician treating Dicks’ released her to dered Dicks to be examined Dr. Basil of her ordered her not to return to work until he year, following On
do so. June of the Zurich or- by Griffin, Jr., who was not one physicians. treating Dr. Griffin concluded that Dicks “should job put hardening program be either terminated from her or in a work get Apparently following where she can back to work. . . Dr. Grif- employer suspended advice, fin’s Dicks’ medical benefits and termi- job August suspension nated her from her on 29. As a result physical therapy Dicks on October ceased which had been by treating physician. days ordered She resumed treatment 71 opinion treating physician, later, but in the of her “the more than delay two-month-long [her] treatment exacerbated medical condi- greatly symptoms, adversely ability tion, worsened her affected her pain substantially rehabilitated, be caused additional behavior and af- permanent partial impairment rating.” fected her The ALJ ordered that all benefits be restored to Dicks effective August upon finding 29, and that Zurich’s defense of the claim was attorney (b) (2). unreasonable, § awarded fees under OCGA 34-9-108 against The sole issue is whether Dicks’ common law claim Zu- by remedy provision rich is barred the exclusive of the Act. (a) provides part rights § OCGA 34-9-11 “[t]he that and the employee by chapter remedies to an this shall exclude all rights employee other and remedies of such ... service, at common law or injury, otherwise, on account of such loss of or . .” death. . employee against employers Not all barred claims for intentional are by (a). might An insurer be held liable for egregious pointed torts, certain 902, as out in 8 ALR4th provides penalty delayed payments, But where the Act a for benefit delay by remedy provision. claim based on the is barred the exclusive Bright 365) (1984), Nimmo, v. 253 Ga. Supreme compensa- Court held that the intentional of workers’ payments give independent tion does not rise to an cause of action against employer injury. expressly or its insurer for financial It open question employee left for “an of whether the could recover tort alleged injury employer.” intentional Id. What in mak- delay itself recovery for the clearly is foreclosed is additional court is that given monetary payments. The reason ing delay, so the exclu- penalties provides Act Workers’ law of common employee’s use Act excludes the sivity feature of the charge” “delinquency penalties addition remedies to obtain in the Act. attorney provided fees Davis, In Aetna Cas. &c. Co. compensation employer’s workers’ employee sued her that the insurer alleging breach of contract
surer tortious pay by failing to agreement board-approved settlement breached Bright, Relying on agreement. medical benefits awarded under Davis, Supreme Court acknowl- day as supra, decided the same provides for the assessment edged that OCGA 34-9-108 unreasonably payments. medical against party who controverts there- law remedies employee’s It ruled that “the use common [was Davis, supra at 378. excluded.” fore] is Jim Walter Homes
Distinguishable denied, plain The cert. 908. employer and tiff suffered a work-related and sued her former insurer, intentionally they its workers’ payment for medical treat wrongfully refused to authorize ap employer, who on judgment against ment. The court entered *3 peal jurisdiction court’s to consider a workers’ com attacked the trial pensation validity under the Act’s judgment claim and the of the Svcs., Murphy v. ARA remedy provision. Citing exclusive Brazo, Cox v. 528) (1982) App. App. and Ga. inten alleged injury we found that the was “an to au injury resulting employer’s] tional from refusal [the complaint thorize treatment ...” and concluded that the by set forth a common law cause of action which was not barred Roberts, remedy provision. supra Act’s exclusive at 621. Murphy Cox, employee employer
In after both and an sued cases, sexually by employee In being supervisor. harassed both despite alleged employer negligently supervisor, that her retained the harassment, repeated complaints in the trial court and both cases employers summary employ- judgment, finding that by remedy provisions. ees’ claims were barred the Act’s exclusive Murphy, in case this Court concluded that involved did not thus “injury,” fall within the Act’s definition of and the claim Act.” by Compensation was “neither covered nor barred the Workers’ Cox, supra A at 889. Id. at 863. similar conclusion was reached complaint, employee alleged In her ALJ and board Dicks that the found that defendant insurer’s benefits was “unconscion- cessation of “willful and alleged able.” She also that defendant’s acts constituted contro- wanton misconduct and misfeasance” and that its “unlawful intentional, willful, with conscious benefits was [and] version of [her] alleged breach of comprises consequences.” This disregard of the already had damages. tort She plaintiff seeks duty which the legal amount employer and insurer against obtained benefits, penalty under recovery as a one-third of the equal (b) grounds.” reasonable acting “without for their percentage based on This, delinquency charges and the (e) (f), only penal- are the by OCGA 34-9-221 are allowed which employer/ Act for Compensation the Workers’ provided under ties insurer recalcitrance. injury flowing from and contemplate physical
The Act does not insurer refus misconduct of an by wilful and wanton being caused course, pay be “inten any refusal to would payments. Of ing to make here, the nature of injury alleged nature of the tional.” It is the distinguishes her case actions, contends plaintiff which defendant’s monetary pen seeking not Bright and Davis. She is from those of she physical injury alty for the but rather delay, injury a new or exacerbated alleges caused the tortious was the actions of the employment but rather to is not related to which injury. This is independent of her work-related as the source insurer Act, as were the Compensation purview of the Workers’ outside denied, supra at 620 cert. alleged acts in Dutton by this Court recognized Ga. 908. The distinction 504) (1994). Fund, &c. v. Ga. Assoc. similarly situ- Dicks and others To otherwise would leave hold prove alleged breach legal remedy. Assuming she can ated without delay, effect on her duty mere and its causative over and above Compensa- physical injury, it is not covered the Workers’ claimed work-related) (because compen- be and it would not tion Act it is not Surely exclusivity provision of the Workers’ sable at common law. result, would be con- not embrace this which Act does 51-1-6 and 51-1-8. trary general law found OCGA §§ affirmed, is not entitled as the insurer The trial court should be stands. summary judgment on the record as it J., J., Pope, Birdsong, P. Judgment McMurray, P. affirmed. JJ., Andrews, J., Smith, concur. Blackburn P. Johnson and Ruf- fin, JJ., dissent. *4 Judge, dissenting. Ruffin, holds, respect- I agree majority I much of what the
While
in
decision
fully
Supreme
I
our
Court’s
dissent because
do not believe
(320
Davis,
al-
Cas. &c. Co. v.
Likewise, I question the soundness of our decision in Jim Walter Homes v. (396 787) App. Ga. SE2d Neither of the cases relied on in Roberts type involved the of claim that was Murphy Svcs., (298 at issue in ARA that case. See App. 164 Ga. 528) (1982) Brazo, and Cox v. 71) SE2d (1983). While Roberts physical injuries involved claim for resulting from an Murphy delay intentional payments, both and Cox claim, involved claims for sexual harassment. Such a as ar- cases, ticulated in clearly those falls outside the Act’s definition of “injury.” Moreover, Davis, time, which was expressly decided at that prohibited the cause of action Roberts. in asserted claim Roberts
While the in in arguably the case at hand fails to meet the Act’s definition I “injury,” my am constrained dis- Davis, sent language broad which bars such claims because penalties for the pro- unreasonable refusal of medical benefits are Furthermore, vided the Act. Roberts although subsequent de- cisions distinguished have between claims for intentional financial jury and those for intentional injury, can discern no reason why such claims differently should be treated where both result from delay in paying types benefits. Because predi- both of claims are cated on an intentional and unreasonable paying provides each case the penalty. (b) Act See OCGA 34-9-108 §§ (e). 34-9-221 Although cites Dutton v. Ga. Assoc. &c. majority Fund, example as an which this in Dutton we con- recognized distinction, Court has cluded that cause action precluded by asserted there our Supreme in Bright Nimmo, Court’s decision 365) (1984). Dutton, supra at 608.
Finally, sympathize while I plaintiff with the in this case and concede that an award of likely fees is not sufficient to re- “ here, dress such as are involved is not our function to ‘[i]t *5 any enlargement statutory of enlarge sanctions; rather, sanc- these Bright, Assembly.’ already [Cit.]” is for General tions available supra at 381. Judge Judge Black- Andrews and authorized to state am join in
burn this dissent. 15, 1996.
Decided March Douglas Lay, Glaser, T. Farnham, for Drew, Eckl & Arthur H. appellant. appellee.
Jeffrey Frazier, W. LEASING, INC. et al. et al. LMV A95A2010.BRIDGERS Judge Harold R. Banke. (“the Bridgers Bridgers Bridgers”), les- A. Ed P. and Doris summary grant judg- pickup appeal truck, of
sees of a ment rious Acceptance Corporation (collectively trial court’s (“Hub”) Company lessor, Motor and the lease’s va- Hub Leasing, Group, assignees, Inc., Financial and Lendco LMV LSI
Leasing”). “LMV Bridgers, light
Viewed the August most favorable to evidence eight executing after the lease shows that months they they agreement, dissatisfied returned the truck because were they Corp. Haskins, Lau’s with the deal made. 474) (1991). they they agreed lease, entered into When monthly They payments $19,629.28 owed when $385.99. make 60 they they Hub that did not intend returned the truck and informed any payments; they more shows then ceased mak- make record ing payments. Bridgers truck, When returned the he took docu- Ed lawyer styled “Acknowledgement Receipt prepared ment Vehicle” which his liability purported to him from and Hub’s em- release ployee signed Leasing subsequently resold the document. LMV $9,255. truck for Leasing recovery Bridgers seeking
LMV sued the deficiency prejudgment $10,602.12 sale, from the truck’s interest provided under It the lease. also sued Hub negligence executing when contract breach of Bridgers the release Bridgers alleged counterclaim, returned the truck. Leasing lease that LMV defrauded them with second which original changed Bridgers The the terms and conditions of the lease. conspired against Hub, also filed a cross-claim LMV Hub Leasing Leasing Hub both to defraud them. LMV moved