Heath v. Standard Accident Insurance

95 S.E.2d 726, 94 Ga. App. 548, 1956 Ga. App. LEXIS 610

• Court: Court of Appeals of Georgia
• Decided: October 1, 1956
• Docket: 36296
• Status: Published

Opinions

Nichols, J.

Assuming but not deciding, as the employer and insurer contend, that a hearing may be requested under Code § 114-706 as amended by the act of 1945 (Ga. L. 1945, p. 462) after the agreement entered into between the parties has been approved by the State Board of Workmen’s Compensation, when there is a disagreement between the employee and the employer and insurance carrier, where it is not alleged that there has been any change in condition involved in the disagreement (see in this connection, Wilkins v. Travelers Ins. Co., 52 Ga. App. 142, 144, 182 S. E. 628), the appellate courts of this State have consistently held that an award of the board unappealed from is res adjudicata and is binding upon the parties in the absence of fraud, accident or mistake. See Liberty Mutual Ins. Co. v. Morgan, 199 Ga. 179, 181 (33 S. E. 2d 336), and cases cited. Inasmuch as an unreversed award of the board may be enforced as other judgments of the superior courts (Code § 114-711), this fraud, accident, or mistake referred to is the same as is set forth in Code § 37-219. Under the decisions of the Supreme Court in Marshall v. Livingston, 77 Ga. 21 (5a), and Nolan v. Southland Loan &c. Co., 177 Ga. 59, 63 (169 S. E. 370), this remedy is not available in cases where a consent judgment has been rendered (the award based on the agreement amounting to a consent judgment), "without some grave cause, such as fraud, mistake or conduct of the opposite party by which the plaintiff was misled, and not then, unless he showed satisfactorily that the action was taken without any mixture of fraud or negligence on his own part.” Marshall v. Livingston, supra.

In the present case it affirmatively appears that the insurer made no investigation of the incident out of which the claim arose pther than to receive a statement from the claimant after it was notified by its assured, the employer, Foremost Builders Supply Co., of the accident, and immediately entered into the agreement with the claimant that was later approved by the board. Certainly it cannot be said that the insurer could not have found out the type of contract that existed between its assured and the claimant (it being claimed that the claimant was contractor and not an employee of the Foremost Builders Supply Co.) before the agreement approved by the board was entered into simply by inquiring of its assured as to the type of contract between it and the claimant. Therefore, it cannot be said that there was no negligence on the part of the insurer in entering into the agreement on which the award of the board was based, and the Superior Court of Tift County erred in reversing the award of the full board denying the request of the insurer to set aside such award.

Judgment reversed.

Felton, C. J., and Quillian, J., concur.