Boston Old Colony Insurance v. Brown

272 S.E.2d 755, 155 Ga. App. 767, 1980 Ga. App. LEXIS 2783

• Court: Court of Appeals of Georgia
• Decided: September 19, 1980
• Docket: 60054
• Status: Published

Opinion

Shulman, Judge.

This appeal is from a declaratory judgment holding that an employee may recover both under the Workers’ Compensation Act and under his employer’s “no-fault” insurance plan for injuries sustained in a vehicular collision incurred while in the course of his employment. We reverse.

This issue is controlled by Freeman v. Ryder Truck Lines, Inc., 244 Ga. 80 (259 SE2d 36), in accordance with appellant’s contentions. In Freeman, the court found that “Code Ann. § 56-3409b (a) protects plaintiff’s rights under his own no-fault policy notwithstanding his receipt of workers’ compensation benefits but that, having received compensation benefits, Code Ann. § 114-103 precludes his recovery of no-fault benefits from his employer. As was stated by the Supreme Court of Utah in IML Freight, Inc. v. Ottosen [cit]: ‘We believe that the No-Fault Act . . . has no application to employers who already are obligated under Workmen’s Compensation, to their employees, and that No-Fault has neither changed that statutory obligation nor increased an employer’s burden to pay compensation for a favored class of employees.’ ” (Emphasis supplied.) Id., p. 83.

Argued June 16, 1980 Decided September 19, 1980 Howard M. Lessinger, M. David Merritt, for appellant. M. Hardeman Blackshear, for appellee.

Under the binding authority of Freeman, we find that the judgment of the trial court requiring appellant-insurer to continue making payments to appellee under its no-fault policy with appellee’s employer despite the employee’s receipt of workers’ compensation benefits was error. The contentions of appellee to the contrary attempting to distinguish Freeman are unpersuasive.

Judgment reversed.

Quillian, P. J., and Carley, J., concur.