SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
October 26, 2012
In the Court of Appeals of Georgia A12A0884. DIXIE ROADBUILDERS, INC. et al. v. SALLET et al.
MCFADDEN, Judge.
Melvin Sallet died from injuries sustained in a shooting at a convenience store.
His adult children and his estate brought a wrongful death action against Sallet’s
employer, Dixie Roadbuilders, Inc., and Dixie Roadbuilders’ president and part-
owner, Alton C. Walker, Jr., among others. Dixie Roadbuilders sought summary
judgment on the ground that the action against it was precluded by the exclusive
remedy provision of the Workers’ Compensation Act. Walker sought summary
judgment on the ground that he could not be held personally liable, as a corporate
officer of Dixie Roadbuilders, for that company’s alleged tortious acts. The trial court
denied these motions, and we granted the defendants’ application for interlocutory
review. We find that a factual question exists as to whether workers’ compensation
applies to Sallet’s injuries, and we find that the plaintiffs may challenge the
applicability of workers’ compensation to those injuries, notwithstanding Dixie
Roadbuilders’ voluntary workers’ compensation payment of Sallet’s funeral
expenses. Accordingly, we affirm the denial of summary judgment to Dixie
Roadbuilders. We also find that a factual question exists as to whether, apart from
Walker’s role as a corporate officer of Dixie Roadbuilders, he also was the owner and
operator of the Dixie Express convenience store and subject to potential liability in
that capacity. Accordingly, we affirm the denial of summary judgment to Walker.
Summary judgment is appropriate when there is no genuine issue as to any
material fact and the moving party is entitled to a judgment as a matter of law. OCGA
§ 9-11-56 (c). “On appeal from the grant or denial of a motion for summary judgment,
we review the evidence de novo, and all reasonable conclusions and inferences drawn
from the evidence are construed in the light most favorable to the nonmovant.”
(Citation omitted.) Spectera, Inc. v. Wilson, __ Ga. App. __, __ (730 SE2d 699)
(2012).
1. Facts.
2 So viewed, the evidence showed that Dixie Roadbuilders employed Sallet as
a loader operator at its asphalt plant. Sometime during the afternoon of October 17,
2005, Sallet left the plant and drove to the nearby Dixie Express convenience store.
While Sallet was at the store, a robbery occurred and he was shot. He subsequently
died of his injuries.
The Dixie Express store is associated with Dixie Roadbuilders, but the
relationship between the two entities is unclear from the evidence. Dixie
Roadbuilders employed the store’s workers, and one witness described the store as
a division of Dixie Roadbuilders. One of Dixie Roadbuilders’ co-owners deposed that
Dixie Roadbuilders leased the store from another party. The other co-owner, Dixie
Roadbuilders president Alton C. Walker, Jr., deposed that Dixie Roadbuilders owned
the store. But Walker also represented himself to be the “owner/operator” of Dixie
Express in sworn statements made in connection with the store’s business license and
occupational taxes. Although Dixie Roadbuilders’ corporate secretary deposed that
Walker signed those statements in his capacity as Dixie Roadbuilders’ president, the
documents do not reflect any relationship between Dixie Roadbuilders and Dixie
Express.
3 The main purpose of the Dixie Express store was to provide a place near the
plant for Dixie Roadbuilders trucks to refuel. The store also was open to the public
and sold items such as drinks and snacks. Sallet often took an afternoon break to get
a drink from the store. He did not need permission to do this, but would “just jump
in his truck and go.” On the day in question, Sallet did not tell his supervisor or any
other person at Dixie Roadbuilders that he was leaving the plant. Various persons at
Dixie Roadbuilders assumed he had taken a break to get a drink, however, because
he had left his loader parked in the plant’s yard rather than securing it under a shelter
as was his usual practice when he left work for the day.
Sallet also was in the habit of stopping at the Dixie Express store before or
after work. And, although he usually worked until 5 p.m., he would sometimes leave
earlier if work was slow. There is evidence that he did not need permission to leave
early, but also that he never left early without asking. He did not ask to leave early on
the day of the shooting. But Sallet had made plans with one of his daughters for her
to visit him at his house or call him at his house that afternoon, after her child got
home from school.
After the shooting, Dixie Roadbuilders filed a claim with its workers’
compensation insurance carrier. In response to this claim, the carrier made a payment
4 directly to the funeral home for Sallet’s funeral expenses and a payment to the State
Board of Workers’ Compensation pursuant to OCGA § 34-9-265 (f). The plaintiffs,
however, neither sought workers’ compensation benefits from Dixie Roadbuilders nor
requested that it file the claim with its insurance carrier. They did not know that the
funeral costs had been paid by Dixie Roadbuilders’ workers’ compensation carrier but
believed that these costs had been paid by a friend of Sallet.
2. Questions of fact regarding the applicability of the Workers’ Compensation
Act preclude the grant of summary judgment to Dixie Roadbuilders.
Dixie Roadbuilders argues that it is entitled to summary judgment because the
exclusive remedy provision of the Workers’ Compensation Act, OCGA § 34-9-11,
precludes the plaintiffs’ tort suit against it. The Workers’ Compensation Act
provides benefits to an employee injured in an accident arising out of and in the course of the employment. [OCGA § 34-9-1 (4).] The legislature has expressly codified its intent that the Act be liberally construed to bring both employers and employees within the [A]ct. [OCGA § 34-9-23.] Where the Act is applicable, its provisions are the exclusive remedy for the employee against the employer. [OCGA § 34- 9-11.]
Doss v. Food Lion, 267 Ga. 312 (1) (477 SE2d 577) (1996).
5 Dixie Roadbuilders contends that the Act applies because Sallet’s death arose
out of and in the course of his employment. These are “two independent and distinct
criteria, and an injury is not compensable [under the Act] unless it satisfies both.”
(Citation omitted.) Mayor & Aldermen of the City of Savannah v. Stevens, 278 Ga.
166 (1) (598 SE2d 456) (2004). An injury or death arises out of employment “when
it is apparent to the rational mind, upon consideration of all the circumstances, that
there is a causal connection between the conditions under which the work is required
to be performed and the resulting injury.” (Citations and punctuation omitted.) Blair
v. Georgia Baptist &c. Ministries, 189 Ga. App. 579, 580-581 (1) (377 SE2d 21)
(1988). Accord Ray Bell Constr. Co. v. King, 281 Ga. 853, 855 (642 SE2d 841)
(2007). An injury or death arises in the course of employment “when it occurs within
the period of the employment, at a place where the employee reasonably may be in
the performance of [his] duties, and while [he] is fulfilling those duties or engaged
in doing something incidental thereto. This statutory requirement relates to the time,
place and circumstances under which the injury takes place.” (Citation omitted.)
Burns Intl. Security Svcs. v. Johnson, 284 Ga. App. 289, 292 (1) (b) (643 SE2d 800)
(2007). Accord Ray Bell Constr., 281 Ga. at 854-855. Whether an injury arises out
6 of and in the course of employment is generally a mixed question of law and fact.
Blair, 189 Ga. App. at 581 (1).
Dixie Roadbuilders argues that Sallet’s death satisfies both criteria as a matter
of law. It bases this argument on its assertions that, when Sallet went to the Dixie
Express store, he had not left work for the day and he was not on a personal pursuit.
But, as explained below, the evidence as to both of these assertions is conflicting and
consequently does not support a grant of summary judgment to Dixie Roadbuilders.
(a) A question of fact exists as to whether Sallet had left work for the day. First,
there is conflicting evidence regarding whether, at the time of the shooting, Sallet had
left work for the day or merely was on a break and planning to return to work. This
issue is material to the applicability of workers’ compensation (and thus the exclusive
remedy provision) because
[t]he hazards encountered by employees while going to or returning from their regular place of work, before reaching or after leaving the employer’s premises, are not ordinarily incident to the employment, and for this reason injuries from such hazards are in most instances held not to be compensable as arising out of and in the course of the employment.
(Citation omitted.) Harrison v. Winn Dixie Stores, 247 Ga. App. 6, 7 (542 SE2d 142)
(2000).
7 Dixie Roadbuilders argues that Sallet had merely taken a short break, pointing
to evidence such as his practice of taking a mid-afternoon break, the fact that he did
not seek permission to leave for the day, and the fact that he had left his loader in the
plant yard, rather than securing it under a shelter for the night. But there also is
evidence that Sallet had left work for the day, namely his practice of leaving early
when work was slow, the fact that he did not need to seek permission to leave, and
the fact that he had made plans with his daughter for that afternoon. From this
conflicting evidence, a jury could find that Sallet had left work for the day when he
was shot. (Given this conflicting evidence, and in light of the fact that the evidence
rules in Georgia will be changing on January 1, 2013, we decline to address the
admissibility of other evidence that, shortly before the shooting, Sallet told a friend
on the telephone that he had left work for the day and was going to the store. )
Although there are several exceptions to the general rule that an injury is not
compensable under workers’ compensation when it occurs after an employee has left
work, see Harrison, 247 Ga. App. at 7-8, the undisputed evidence does not show that
any of those exceptions apply in this case.
We reject Dixie Roadbuilders’ assertion that the Dixie Express store is
analogous to the employer-owned parking lot in Macy’s South v. Clark, 215 Ga. App.
8 661 (452 SE2d 530) (1994), such that an injury sustained on that premises by an
employee leaving work for the day could be considered an injury arising out of and
in the course of employment. The decision in Macy’s was an application of the
ingress and egress rule, and the employee in Macy’s was in the employer-owned
parking lot in the course of her egress from her workplace. See id. at 664 (2). Here,
in contrast, Sallet’s trip to the Dixie Express store was not part of his egress from his
workplace. Had he chosen, after leaving work for the day, to stop at a nearby
convenience store that was not affiliated with his employer, workers’ compensation
clearly would not apply. See generally Harrison, 247 Ga. App. at 7. We see no basis
for a different outcome simply because, in this case, the convenience store was
affiliated with the employer.
(b) A question of fact exists as to whether Sallet’s trip to the store was a
deviation from his employment and therefore a personal pursuit. Even if Sallet
merely took a break when he went to the Dixie Express store, this does not
demonstrate that the injury he sustained during that break arose out of and in the
course of his employment. Georgia courts recognize the deviation rule, which
provides that
9 when an employee steps aside from his employer’s business to do some act of his own, not connected with his employer’s business, the relationship of employer and employee, or master and servant, is, as to that act, completely suspended, and an accident occurring at that time, resulting in injury to the employee, does not arise out of the employment within the meaning of the Workers’ Compensation Act.
(Citations and punctuation omitted.) Olde South Custom Landscaping v. Mathis, 229
Ga. App. 316, 318 (494 SE2d 14) (1997). Accord Stokes v. Coweta County Bd. of Ed.,
313 Ga. App. 505, 508-509 (722 SE2d 118) (2012). “Our courts have found such a
deviation from employment when an employee leaves the employer’s premises to go
home or to a restaurant for a meal, runs a personal errand such as going to a shop,
or, while traveling on business, goes on an excursion solely for personal
entertainment.” (Citations omitted; emphasis supplied.) Stokes, 313 Ga. App. at 509.
Dixie Roadbuilders asserts that the evidence demands a finding that Sallet’s
“trip to the Dixie Express store for a break was not a ‘personal’ pursuit outside the
scope of his employment since the time was ‘not released to him as free time’ during
which he could do as he wished.” But the evidence showed that Sallet left his work
premises without seeking his employer’s permission, and there is no evidence to
suggest that he was fulfilling a part of his work duties while he was at the Dixie
10 Express store, compare Blair, 189 Ga. App. at 582 (2), or that he was subject to being
called back to work while he was at the store. Compare Twin City Fire Ins. Co. v.
Graham, 139 Ga. App. 318, 319 (228 SE2d 355) (1976). To the contrary, Sallet’s
supervisor did not know his whereabouts.
Nevertheless, Dixie Roadbuilders argues that Sallet’s trip to the Dixie Express
store was not a personal pursuit because his breaks were not scheduled but depended
on his workload. The cases Dixie Roadbuilders cites for this proposition, however,
are inapposite, because they all involve employees who were at their workplace when
they were injured during the break. See Miles v. Brown Transport Corp., 163 Ga.
App. 563 (294 SE2d 734) (1982) (an employee who fell on stairs at her workplace as
she was in the process of leaving to take a lunch break had an injury arising out of
and in the course of her employment, because she was injured during her work hours
on her employer’s premises, because the precise time of her lunch break was not
scheduled, and because she often performed job-related duties during her lunch
break); Twin City Fire Ins. Co. v. Graham, 139 Ga. App. at 319 (workers’
compensation covered an injury that occurred during an operating room nurse’s
break, where the nurse had no scheduled breaks, could take breaks only when the
operating room activities permitted, was not able to leave the premises during the
11 break, and was subject to being called back to the operating room at any time);
Edwards v. Liberty Mut. Ins. Co., 130 Ga. App. 23, 24 (2) (202 SE2d 208) (1973) (an
injury sustained by an employee during an unscheduled bathroom break was covered
by workers’ compensation, because “the time [was] not released to [the employee] as
free time during which he may do as he will and it cannot be construed as an
altogether personal pursuit, as is the case during scheduled breaks”).
Unlike the employees in the cases cited by Dixie Roadbuilders, Sallet did not
stay on his work premises during his break, and there is no evidence that he was at
the convenience store in furtherance of Dixie Roadbuilders’ business. As such, the
break resembled a personal pursuit, even though it was unscheduled. See Ansa
Mufflers Corp. v. Law, 192 Ga. App. 45 (383 SE2d 574) (1989) (employee who was
injured during his lunch break was not in the course of his employment at the time,
even though he was allowed to eat lunch whenever he wanted rather than at a
specific, scheduled time, where he had left work in his own car to go home for the
break, he was not on an errand for his employer, and he was not going to conduct any
further business until after the break). That the convenience store may have been
owned, leased, or operated by Dixie Roadbuilders does not change the fact that it was
not Sallet’s work premises.
12 Under these circumstances, we cannot say as a matter of law that Sallet’s trip
to the store was not a personal pursuit outside the course of his employment at the
asphalt plant. Rather, the evidence presents a question of fact as to whether Sallet
deviated from his employment.
3. The plaintiffs are not estopped from challenging the applicability of the
Workers’ Compensation Act.
Dixie Roadbuilders argues that the plaintiffs cannot challenge the applicability
of the Act (and, consequently, the exclusive remedy provision) in this case because
they accepted workers’ compensation benefits. The evidence shows that Dixie
Roadbuilders instituted a workers’ compensation claim on Sallet’s behalf through its
workers’ compensation insurance carrier, and that the carrier made a payment to the
funeral home and a payment to the state Workers’ Compensation Board. This
constituted a “voluntary payment” of workers’ compensation benefits. See Collins v.
Grafton, Inc., 263 Ga. 441, 442 & n. 3 (1) (435 SE2d 37) (1993) (“The term
‘voluntary payment’ is used to denote workers’ compensation benefits paid by an
employer without an adjudication of the compensability of the underlying injury.”).
The plaintiffs did not request, and in fact were unaware, of this payment.
13 A party’s acceptance of workers’ compensation benefits can trigger the
exclusive remedy provision and estop that party from denying that an injury was
covered by workers’ compensation. See, e.g., Mann v. Workman, 181 Ga. App. 211,
213 (1) (351 SE2d 680) (1986). In the case of a “voluntary payment,” however, our
Supreme Court has stated that
an employer in a situation where coverage is questionable should not be able to voluntarily assume liability for the limited benefits of the Workers’ Compensation Act and thereby avoid the potentially greater liability of a common-law action. Unbridled application of the doctrine of equitable estoppel cannot be a means by which the very purpose of the Act is thwarted. The successful continuation of the workers’ compensation system requires that studied caution be exercised before the doctrine is applied against an injured party who does nothing more than receive compensation benefits voluntarily provided by an employer.
(Citation omitted.) Collins, 263 Ga. at 444 (3). Accordingly, the Court held in Collins
that an employer’s voluntary
payment of some of [an injured employee’s] medical bills directly to the medical personnel involved, in and of itself, [could not] estop [the employee] to deny compensability since her acceptance of partial payment of her medical expenses [was] not inconsistent with her
14 assertion of a tort claim, as [the employer] was potentially liable for the medical expenses under a common-law theory of negligence.
Id. at 443 (2).
Similarly, even if the plaintiffs could be viewed as having “accepted” the
insurance carrier’s payment of Sallet’s funeral expenses despite being unaware that
the carrier had paid them, their acceptance of the payment of funeral expenses is not
inconsistent with their assertion of tort claims against Dixie Roadbuilders and does
not estop them from contesting the applicability of workers’ compensation coverage
in this case. Id. Consequently, the payment of funeral expenses by Dixie
Roadbuilders’ insurance carrier does not authorize the grant of summary judgment
to it on the theory of estoppel. Id. at 443-444 (2).
4. Questions of fact exist as to Alton Walker’s individual ownership interest in
Dixie Express, precluding summary judgment on the ground that he is not liable in
his role as a corporate officer.
Walker argues that he is entitled to summary judgment because he is merely a
corporate officer of Dixie Roadbuilders who cannot be held personally liable for his
corporate principal’s torts, in that he did not personally participate in the torts and no
basis exists for piercing the corporate veil. We disagree.
15 The plaintiffs alleged that Walker breached duties imposed upon him by virtue
of his role as the owner and operator of Dixie Express, not by virtue of his role as a
corporate officer of Dixie Roadbuilders. See OCGA § 51-3-1 (“Where an owner or
occupier of land, by express or implied invitation, induces or leads others to come
upon his premises for any lawful purpose, he is liable in damages to such persons for
injuries caused by his failure to exercise ordinary care in keeping the premises and
approaches safe.”). Whether Walker was the owner and operator of Dixie Express is
a matter of dispute. Walker points to evidence that Dixie Express was either owned
or leased and operated by Dixie Roadbuilders, and not by Walker individually. But
the plaintiffs point to Walker’s own sworn statements in which he identified himself
as the “owner/operator” of Dixie Express. Although Walker now disputes the
accuracy of those statements, his credibility on this point is a question for the
factfinder, not an issue for this court to resolve on summary judgment. See Harding
v. Georgia Gen. Ins. Co., 224 Ga. App. 22, 25 (479 SE2d 410) (1996).
Walker argued before the trial court that he cannot be liable in his role as a
corporate officer of Dixie Roadbuilders. He has not made any arguments regarding
his potential liability as the “owner/operator” of Dixie Express, and we cannot
consider whether Walker might be entitled to summary judgment for reasons not
16 argued before the trial court. See Lowery v. Atlanta Heart Assoc., 266 Ga. App. 402,
405 (2) (597 SE2d 494) (2004) (we do not apply a “wrong for any reason” rule).
Because a genuine issue of fact exists as to whether Walker was the “owner/operator”
of Dixie Express, the trial court did not err in denying his motion for summary
judgment.
Judgment affirmed. Barnes, P. J., and Adams, J., concur.