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C. Bronw Trucking2/18/2004
Commercial trucking owner-operators, defined as those who lease their trucks and drivers to a motor common carrier, are deemed independent contractors under the Workers' Compensation Act ("Act") and are not entitled to claim benefits from the carrier for work-related injuries. We granted this discretionary appeal to clarify that the exclusion does not apply to the owner-operator's employees. Accordingly, we affirm the superior court's affirmance of the award of the appellate division of the State Board of Workers' Compensation ("Board") to the owner-operator's employee, Harold L. Rushing.
In reviewing a workers' compensation award, we construe the evidence in the light most favorable to the party prevailing before the Board. So viewed, the record shows that Rushing was hired by Carlos Garza, an owner-operator, to perform work on property owned by Norfolk Southern Corporation ("the railway"). C. Brown Trucking, Inc. ("Brown"), a motor common carrier, had engaged Garza to provide trucks and drivers to assist in fulfilling Brown's contract with the railway. Garza's trucks carried placards labeled "C. Brown Trucking, Inc." on the side of the cab. On November 27, 2000, Rushing was injured when a train struck a truck that he was driving.
Rushing first filed a claim for workers' compensation benefits against Garza, but he was uninsured. Rushing then filed a claim against Brown, alleging that Brown was Rushing's statutory employer under OCGA § 34-9-8. The administrative law judge ("ALJ") found that, at the time of the accident, Rushing was performing work required by the contract between Brown and the railway, that Garza was Brown's subcontractor, and that the injury occurred on the premises on which Brown had undertaken to execute work through Garza. The ALJ thus concluded that Brown was Rushing's statutory employer. In addition, the ALJ found that Brown's defense was unreasonable and awarded Rushing $7,250 in attorney fees. Finally, the ALJ assessed a ten percent penalty against Brown under OCGA § 34-9-126 (b) for its willful failure to carry insurance coverage, a 15 percent penalty under OCGA § 34-9-221 (e) for its untimely payment of benefits, and a $1,000 civil penalty under OCGA § 34-9-18 (c) for the aforementioned violations. Brown appealed the ALJ's decision to the Board, which vacated the ten percent penalty but otherwise adopted the ALJ's award. Brown appealed to the superior court. As no order was entered, the Board's award was affirmed by operation of law. This appeal followed.
1. OCGA § 34-9-1 (2) defines the term "employee" for purposes of coverage under the Act. In 1991, that code section was amended to provide, in pertinent part, that "for purposes of this chapter, an owner-operator as such term is defined in Code Section 40-2-87 shall be deemed to be an independent contractor." OCGA § 40-2-87 (19), in turn, defines an "owner-operator" as "an equipment lessor who leases his vehicular equipment with driver to a carrier." Brown argues that the employee of an owner-operator stands on the same footing as the owner-operator and cannot recover benefits from the carrier. We disagree.
Our goal in construing a statute is to ascertain the intent of the legislature. In so doing, we apply
the venerable principle of statutory construction expressio unius est exclusio alterius: the express mention of one thing implies the exclusion of another; or the similar maxim more usually applied to statutes, expressum facit cessare tacitum, which means that if some things (of many) are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned. The omission of any such reference from the Co
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