Bli Construction Company v. Knowles., 123 Ga. App. 588, 181 S.E.2d 879 (1971)

Text

---

Ross & Finch, Claude R. Ross, Ellis Ray Brown, for appellee.Woodruff, Savell, Lane & Williams, John M. Williams, Lawson A. Cox, II, for appellant.

The denial of the defendant's motion for summary judgment was not error.

This case arises out of an action for personal injuries. In this opinion the plaintiff, Boy Lee Knowles, will be referred to as Knowles. The defendant, Bli Construction Company, will be referred to as Bli, and Smith Brothers Concrete Finishers (a partnership composed of Bobby Smith and Herman Smith) will be referred to as Smith.

The plaintiff, Knowles, fell while on the job, and alleges that he received certain injuries, and that the defendant, Bli is liable for said injuries. He contends that under the facts of the case he has a right to maintain a common law action against the defendant Bli. Bli, however, contends that the plaintiff's sole action against it is under the provisions of the Workmen's Compensation Act of the State of Georgia.

Bli filed a motion for summary judgment contending that Knowles' sole remedy would be under the Workmen's Compensation Act. In support of its motion, affidavits of Bobby Smith and an officer of Bli were attached. Knowles then filed his response to the defendant's motion for summary judgment, and attached thereto an affidavit of Knowles and a counter-affidavit of Bobby Smith.

Bli's motion for summary judgment was heard and, after consideration of the record and hearing argument of counsel, the court issued its order and judgment overruling Bli's motion for summary judgment and certifying the same for immediate review.

The sole issue to be determined is whether the plaintiff had a right to bring a common law action against Bli, the principal contractor.

There appears to be no dispute that, at the time of his alleged injuries, Knowles was working at a project known as Cross Creek Apartments, that Bli was the general contractor on this project and that Smith was a subcontractor of Bli, with less than ten employees. Code 114-112 as amended, Ga. L. 1969, p. 671, provides in part: "Principal, intermediate or subcontractor, when liable. Recovery. A principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject-matter of the contract, to the same extent as the immediate employer."

The defendant contends that under the provisions of the above quoted statute, Bli was liable for Workmen's Compensation payments to the plaintiff, and the plaintiff's sole remedy against the defendant was under the provisions of the Workmen's Compensation Act. Code 114-103.

To the writer the defendant's argument seems sound; however, the Supreme Court of Georgia has held to the contrary in Blair v. Smith, 201 Ga. 747 (41 SE2d 133). In the Blair case it was held that an employee of a subcontractor could bring a common law action against the principal contractor notwithstanding the provisions of Code 114-112. In the Blair case the facts and the defendant's defense are on all fours with the case sub judice. In the opinion (p. 747), it is stated: "T. A. Smith, in his action against A. F. Blair, alleged that: The defendant was a general contractor, maintaining a fleet of trucks. In July, 1944, while the plaintiff was on a scaffold engaged in painting a building for the United States Navy, in Gainesville, a truck belonging to the defendant negligently ran against the scaffold, knocking the plaintiff to the ground and causing him to sustain certain personal injuries, for which he sued. He charged the defendant with specified acts of negligence and prayed for a judgment of $5,000. The defendant answered, admitting that the truck which ran against the scaffold belonged to him, but he denied the other material allegations of the petition, and alleged, for further defense, that the plaintiff was an employee of Merrill P. Wilson, that Wilson was a subcontractor under the defendant, who, as the general contractor, was engaged in construction, extension and repair for the United States Government at Gainesville, Georgia. He alleged that both Wilson and himself were under the Workmen's Compensation Law of Georgia, that the plaintiff had elected to come under the terms and provisions of such law (Code 114-112), that he had collected workmen's compensation for the injuries received, and that his action was barred under the Code, 114-103." The holding in the Blair case was followed in Mosley v. George A. Fuller Co., 250 F2d 686.

The defendant contends that a 1969 amendment to Code 114-112 requires a different result from what was held in the Blair case. With this contention we cannot agree. The 1969 amendment only changed paragraph three of the statute to allow an employee of a subcontractor, who had less than ten employees, to file a workmen's compensation claim directly against the principal contractor rather than having to first institute the claim against the immediate employer as was required prior to the amendment.

Nothing held therein is in conflict with the decisions of this court which have held that where the subcontractor, who is an independent contractor, is injured he cannot recover workmen's compensation against the principal contractor.

The denial of the defendant's motion for summary judgment was not error.

1971

---