Aimwell, Inc. v. McLendon Enterprises, Inc.

734 S.E.2d 84, 318 Ga. App. 394
CourtCourt of Appeals of Georgia
DecidedNovember 7, 2012
DocketA12A1415, A12A1416
StatusPublished
Cited by24 cases

This text of 734 S.E.2d 84 (Aimwell, Inc. v. McLendon Enterprises, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aimwell, Inc. v. McLendon Enterprises, Inc., 734 S.E.2d 84, 318 Ga. App. 394 (Ga. Ct. App. 2012).

Opinion

DOYLE, Presiding Judge.

In this workers’ compensation case, the administrative law judge (“ALJ”) awarded benefits to Orlando Gaffney, an injured employee of Aimwell, Inc., against both Aimwell andAimwell’s customer, McLendon Enterprises, Inc. (‘McLendon”), in equal parts, finding that Gaffney was a joint employee of both entities at the time of his injury. The Appellate Division of the State Board of Workers’ Compensation upheld the factual findings of the ALJ award, but set aside the equal liability apportionment, concluding that Aimwell was required to pay for 100 percent of the claim pursuant to OCGA § 34-9-224. The superior court affirmed the Board’s decision, and Aimwell filed an application for discretionary appeal, which this Court granted. Aim-well and its insurer appeal in Case No. A12A1415, arguing that the superior court applied the incorrect standard of review and misapplied the borrowed servant doctrine and OCGA § 34-9-224. McLendon and its insurer cross-appeal in Case No. A12A1416, arguing that Gaffney was not McLendon’s borrowed servant at the time of his injury. For the reasons that follow, we affirm.

The record shows that Aimwell was a truck and driver leasing company, which provided hauling services to road contractors, including dump trucks and licensed drivers. Aimwell’s main customer was McLendon, a road grading and utility contractor, which had some of its own trucks and drivers; Aimwell’s and McLendon’s offices were located in the same building and owned by a brother and sister. McLendon required Aimwell to provide proof of liability and workers’ compensation insurance for Aimwell’s employees before using them.

Gaffney was employed by Aimwell as a truck foreman, which position required him to assign equipment and drivers to jobs, handle hiring and discipline of employees, and supervise the drivers; he also operated dump trucks and other equipment as necessary, approxi[395]*395mately three or four times per month. When Gaffney did operate equipment, he continued to act as supervisor for Aimwell and was available to other Aimwell drivers through radios.1 Aimwell paid Gaffney at a set hourly rate, regardless of whether he operated equipment; Gaffney was never paid by McLendon.

On January 16, 2009, after Gaffney assigned all available Aim-well drivers to various jobs, a McLendon supervisor asked Gaffney whether he would be willing to drive a McLendon truck, and Gaffney agreed. While doing so, Gaffney was critically injured in a single-vehicle accident. Following the accident, a McLendon supervisor completed Gaffney’s time sheet for the day, assigning one hour to Aimwell for performing his supervisory duties and ten-and-a-half hours of driving time for McLendon. Aimwell billed McLendon for ten-and-a-half hours of Gaffney’s time, and McLendon reimbursed Aimwell for that amount. Aimwell then paid Gaffney for a total of eleven-and-a-half hours of work for that day.

Aimwell’s workers’ compensation insurer, Graphic Arts Mutual Insurance Company (“Graphic Arts”), accepted Gaffney’s claim and paid all benefits owed to Gaffney pursuant to the Act. Aimwell and Graphic Arts then sought a judicial determination regarding whether McLendon was liable for the claim and, if so, in what proportion. Following a hearing, the ALJ entered an award finding that Gaffney was a borrowed servant of McLendon because at the time: (1) McLendon “exercised nearly complete control over the occasion of [Gaffney]’s work”; (2) Gaffney was working for McLendon and performing no work for Aimwell; (3) Aimwell exercised no control over Gaffney’s work; and (4) McLendon had the right to fire Gaffney. The ALJ also concluded that because there was “[a] near complete blend of the functions of the two companies,” and because Gaffney was still required to act as truck supervisor for Aimwell, Gaffney was jointly employed by Aimwell and McLendon at the time of the accident. Therefore, the ALJ determined that Aimwell and McLendon were equally liable for Gaffney’s claim.

The Appellate Division agreed with the ALJ’s factual findings, concluding that “at the time of his accident[, Gaffney] was a joint employee[,] and both employer/insurers are subject to the provisions of OCGA § 34-9-224.” Finding that because “the burden of income and medical benefits rests entirely with [Aimwell,]” the Appellate Division concluded that Aimwell’s burden of compensation was 100 [396]*396percent.2 Both Aimwell and McLendon appealed to the superior court, which affirmed the Appellate Division’s finding of joint employment and 100 percent allocation of liability to Aimwell under OCGA § 34-9-224. This appeal followed.

Case No. A12A1415

1. Aimwell and Graphic Arts argue that the superior court erred by affirming the Appellate Division’s finding that Aimwell was required to bear 100 percent of Gaffney’s compensation claim pursuant to OCGA § 34-9-224. We disagree.

Notably, Aimwell and Graphic Arts do not dispute that Gaffney was in the joint service of Aimwell and McLendon at the time of his injury. Instead, they challenge the 100 percent liability apportionment to Aimwell based on the finding that Aimwell had sole “wage liability” to Gaffney.

OCGA § 34-9-224 provides:

Whenever any employee whose injury or death is compensable under this chapter shall at the time of the injury be in the joint service of two or more employers subject to this chapter, such employers shall contribute to the payment of such compensation in proportion to their wage liability to such employee; provided, however, that nothing in this Code section shall prevent any reasonable arrangement between such employers for a different distribution as between themselves of the ultimate burden of compensation.3

The parties disagree as to the meaning of this statute. McLendon argues that its plain terms require the conclusion that Aimwell had 100 percent wage liability, while Aimwell contends that the superior court’s finding conflicts with the plain language of the statute and is contrary to legislative intent.

Our analysis of this issue begins “with the ‘golden rule’ of statutory construction, which requires us to follow the literal language of the statute unless it produces contradiction, absurdity[,] or such an inconvenience as to insure that the legislature meant some[397]*397thing else.”4 Further, we are required to

look diligently for the intention of the General Assembly. When the language of a statute is plain and unambiguous and not leading to an absurd result, it evidences the legislative intent[,] which is not to be contravened. We also must endeavor to give each part of the statute meaning and avoid constructions that make some language mere surplusage or meaningless.

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Bluebook (online)
734 S.E.2d 84, 318 Ga. App. 394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aimwell-inc-v-mclendon-enterprises-inc-gactapp-2012.