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Dowis v. Mud Slinger Concrete9/30/2004
No. S03G1536
Johnny Edwin Dowis and Elysa Michele Dowis, Plaintiffs, appeal the grant of summary judgment on their tort action against Mud Slinger, Inc., Plaintiff's employer, and Michael Clement Graves, President of the corporate Defendant, foreman, and co-worker. The employer is a Missouri corporation, which paid Plaintiff workers' compensation benefits under Missouri law for an injury occurring on the job in Georgia. The trial court applied the exclusive remedy provision of the Georgia Workers' Compensation Act, OCGA § 34-9-11 et seq., and the lex loci delicti rule as to the applicable choice of substantive law. Plaintiffs want to use the Missouri Workers' Compensation Act, because it would allow him to sue his employer and the president under Georgia tort law. Finding no error, we affirm.
The Plaintiff, Johnny Edwin Dowis, was a Tennessee resident, hired by the Missouri Defendants to hang large sheets of precast plaster molding in a Baymont Inn & Suites in Roswell, Fulton County, Georgia. While working in Roswell, Georgia, Plaintiff was in a basket (manlift) of a telescopic boom forklift operated by the Defendant Graves for Plaintiff's employer. The boom tipped over, causing the Plaintiff to fall four stories. Plaintiff filed a Worker's Compensation claim against the Defendant-employer in Missouri rather than under the Georgia Workers' Compensation Act.
1. The Plaintiffs contend that the trial court erred in granting summary judgment to the Defendants.
There is no issue of fact that the Plaintiff sustained his injuries arising out of and in the course of his employment for the Defendant in Georgia. Therefore, the exclusive remedy of the Georgia Workers' Compensation Act precludes the Plaintiffs from any civil tort action against the Defendants, even when they did not pay benefits to the Plaintiff under Georgia Workers Compensation law. OCGA § 34-9-11; Georgia DHR v. Joseph Campbell Co., 261 Ga. 822 (1) (411 SE2d 871) (1992); Cowart v. Crown Am. Props. L. P., 258 Ga. App. 21, 22 (1) (572 SE2d 706) (2002); see also Long v. Marvin M. Black, Co., 250 Ga. 621 (300 SE2d 150) (1983) (statutory employer immune even though subcontractor-employer paid benefits). "Workers' compensation is the exclusive remedy of employees against employers for work-related injuries. Because of this statute, an employer cannot be held liable as a joint tortfeasor with a third party, even when the employer's negligence contributes to the employee's injuries. Thus, an employer who pays workers' compensation benefits to an employee is immune from liability as a third-party defendant in the employee's tort action." (Citations omitted.) Georgia DHR v. Joseph Campbell Co., supra at 822- 823. Summary judgment was appropriate under the Act. Cowart v. Crown Am. Props. L. P., supra at 22.
2. The Plaintiffs contend that the trial court erred in applying the conflicts of law rule of lex loci delicti so that the Georgia Workers' Compensation Act applied.
In this case, a Missouri employer, who had paid workers' compensation under Missouri law rather than under Georgia Workers' Compensation law for an injury that occurred in Georgia, is sued under Georgia tort law in a Georgia forum, and Georgia courts are asked to ignore Georgia public policy and to apply Missouri Workers' Compensation law that has a different public policy regarding suits against the employer and its officers. OCGA § 34-9-11. The Missouri law may not bar a tort action against the employer and president of the employer corporation.
As to the Georgia conflicts of law rules in tort cases, "Georgia courts have invariably followed this doctrine holding that the lex loci delicti determines the su
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