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WIELAND v. GEORGIA FARM BUREAU MUTUAL INSURANCE5/15/1997
Ethicon, Inc. employed Freddie Lee Ausburn as a mechanic. Ausburn also rented motor vehicles and construction equipment to Ethicon as an independent contractor. Ausburn injured Ethicon employee Wesley Bill Wieland as the two helped to demolish a building for Ethicon. At issue in this appeal is whether Ausburn and Wieland were acting as "fellow employees" at the time of the injury. If they were, Ausburn's insurance policy from Georgia Farm Bureau Mutual Insurance Company does not cover Wieland's injury. Because no genuine issue of material fact remains and they were acting as "fellow employees" when the accident occurred, we affirm the grant of summary judgment to Georgia Farm Bureau.
Summary judgment should be granted when there is no genuine issue of material fact and the movant is entitled to judgment as a
matter of law. OCGA ยง 9-11-56 (c). We review a grant of summary judgment de novo, and must view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga. App. 592 (472 S.E.2d 140) (1996).
Viewed in this light, the evidence shows Ausburn was employed as a general mechanic by Ethicon, for which he earned an hourly wage and received a biweekly paycheck. Ausburn also owned a truck, bulldozer, backhoe, and other equipment that he frequently rented to Ethicon for $100 to $125 per day. Ethicon paid Ausburn approximately once each quarter for the equipment rentals.
Ausburn purchased an insurance policy from Georgia Farm Bureau that covered several of his vehicles, including a flatbed truck. The policy contained the following exclusion: "This insurance does not apply to any of the following: . . . 5. FELLOW EMPLOYEE. `Bodily injury' to any fellow employee of the `insured' arising out of and in the course of the fellow employee's employment."
On August 24, 1994, Ethicon rented the truck and Ausburn drove it. At no charge to Ethicon, Ausburn also supplied a trailer attached to the truck. With the help of other Ethicon employees, Ausburn loaded a roof truss from a building Ethicon was demolishing onto the trailer. Ausburn then drove the truck along a gravel road toward the plant entrance. Wieland, who had been helping with the demolition, was walking alongside the gravel road. Wieland was struck and injured by the truss or some part of the truck or trailer as Ausburn drove by him.
Wieland received workers' compensation benefits from Ethicon's insurer, and brought a negligence action against Ausburn. Georgia Farm Bureau answered on Ausburn's behalf after obtaining his signature on a "Notice and Acknowledgement of Non-Waiver of Rights," preserving Georgia Farm Bureau's right to assert the accident was not covered by Ausburn's policy. Georgia Farm Bureau then brought this declaratory judgment action against Ausburn and Wieland, seeking a determination that the accident was excluded from coverage by the "fellow employee" clause. In opposing Georgia Farm Bureau's motion for summary judgment, Wieland contended the "fellow employee" exclusion did not apply because Ausburn was acting as an independent contractor for Ethicon, not as its employee, when Wieland was injured. The trial court granted the motion, and Wieland appeals.
1. Wieland points to evidence showing Ausburn was sometimes paid through purchase orders for "hauls" or "trips" using his truck. Wieland argues this creates a genuine issue of material fact whether Ausburn acted as an independent contractor in furnishing services, not just equipment, to Ethicon. Ausburn's supervisor, however,
testified Ausburn received his regular hourly wage whenever he performed services for Ethicon, even wh
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