Landrum v. Cobb County Concrete Products, Inc.

Court of Appeals of Georgia

Landrum v. Cobb County Concrete Products, Inc.

383 S.E.2d 144, 191 Ga. App. 805, 1989 Ga. App. LEXIS 803, 1989 WL 105321

CourtCourt of Appeals of Georgia

DecidedMay 19, 1989

DocketA89A0194

StatusPublished

Cited by7 cases

This text of 383 S.E.2d 144 (Landrum v. Cobb County Concrete Products, 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.

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Landrum v. Cobb County Concrete Products, Inc., 383 S.E.2d 144, 191 Ga. App. 805, 1989 Ga. App. LEXIS 803, 1989 WL 105321 (Ga. Ct. App. 1989).

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Opinions

Carley, Chief Judge.

Appellee-defendant J. E. Lovern (Lovern) subcontracted to provide and install the water and sewer lines for a building project. Appellee-defendant Cobb County Concrete Products, Inc. (CCCP) subcontracted with appellee Lovern for the sale, delivery and installation of an underground sewer tank. Superior Crane & Rigging Company (Superior) subcontracted with appellee CCCP to lift the sewer tank into position at the construction site. Appellant-plaintiff’s husband was the employee of Superior who was assigned the job of operating the crane. He died when the crane fell over at the construction site. As the result of her husband’s death, appellant received workers’ compensation benefits from Superior.

Appellant then brought this wrongful death action against appellees Lovern and CCCP. Appellees answered and raised, among their other defenses, the exclusivity of workers’ compensation as appellant’s remedy for the death of her husband. Based upon this defense, appellees subsequently moved for summary judgment. Appellant appeals from the trial court’s grant of summary judgment in favor of appellees.

1. “[A]n employee of a subcontractor engaged upon the subject matter of the contract who is injured on, in or about the premises on which the principal contractor has undertaken to execute the work, can [not] maintain an action in tort against the principal [or intermediate] contractor where the subcontractor is an independent contractor and where workers’ compensation benefits were paid by the subcontractor.” Wright Assoc. v. Rieder, 247 Ga. 496, 497 (1) (277 SE2d 41) (1981). Appellant’s deceased husband was employed by Superior. Superior was a subcontractor of appellee CCCP for the construction project. Although appellee CCCP was apparently the manufacturer of the sewer tank that caused the crane to tip over, it was also a subcontractor of appellee Lovern for the construction project. See generally Rickets v. Tri-State Systems, 177 Ga. App. 509 (1) (339 SE2d 732) (1986). Compare Modlin v. Swift Textiles, 180 Ga. App. 726 (350 SE2d 273) (1986). Appellant has alleged no cause of action against appellee CCCP in its capacity as the manufacturer of the sewer tank. There are no allegations that the sewer tank itself was a negligently or defectively manufactured product. The alleged negligence of appellee CCCP consists only of its representation to Superior that the weight of the sewer tank was less than it actually was. Since appellee CCCP had contracted with Superior to lift the sewer tank into position at the construction site, it is clear that this allegedly negligent representation was not made to Superior in appellee CCCP’s capacity as the [806]*806manufacturer of the sewer tank, but solely in its capacity as appellee Lovern’s subcontractor for the installation of the sewer tank.

We are aware of no authority for the proposition that an allegedly negligent intermediate contractor may not avail himself of the immunity granted to statutory employer simply because he also incidentally occupies the capacity of a manufacturer. “ [N] otwithstanding its [manufacture] of the [sewer tank], appellee [CCCP] was, as to [appellee Lovern], a ‘contractor.’ ‘Contractor’ is defined as one ‘ “who contract^] to perform certain work, such as the furnishing of goods and service, for another. . . .” [Cit.]’ [Cit.] Since the contract with [Superior] was entered into in specific furtherance of [appellee CCCP’s] contractual obligation to [appellee Lovern] rather than [in] its [capacity as the manufacturer], appellee [CCCP] would be the ‘principal’ contractor as to those services. Appellee [CCCP] owed the primary obligation to [appellee Lovern] and the obligation, in turn, was owed to appellee [CCCP] by [Superior]. [Appellant’s deceased], an employee of [Superior], was [killed] while performing these obligations.” Rickets v. Tri-State Systems, supra at 510. Appellee Lovern was itself a subcontractor of the general contractor for the project. Appellant was paid workers’ compensation benefits by Superior. Under these circumstances, appellees CCCP and Lovern, as intermediate contractors, were the statutory employers of appellant’s deceased husband and, as such, they are not liable in tort for his death. See Wright Assoc. v. Rieder, supra. The trial court correctly granted summary judgment in favor of appellees.

2. Appellees’ motion for the imposition of damages for a frivolous appeal is denied.

Judgments affirmed.

Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope and Benham, JJ., concur. Beasley, J., dissents.

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Carley, Chief Judge.

Appellee-defendant J. E. Lovern (Lovern) subcontracted to provide and install the water and sewer lines for a building project. Appellee-defendant Cobb County Concrete Products, Inc. (CCCP) subcontracted with appellee Lovern for the sale, delivery and installation of an underground sewer tank. Superior Crane & Rigging Company (Superior) subcontracted with appellee CCCP to lift the sewer tank into position at the construction site. Appellant-plaintiff’s husband was the employee of Superior who was assigned the job of operating the crane. He died when the crane fell over at the construction site. As the result of her husband’s death, appellant received workers’ compensation benefits from Superior.

Appellant then brought this wrongful death action against appellees Lovern and CCCP. Appellees answered and raised, among their other defenses, the exclusivity of workers’ compensation as appellant’s remedy for the death of her husband. Based upon this defense, appellees subsequently moved for summary judgment. Appellant appeals from the trial court’s grant of summary judgment in favor of appellees.

1. “[A]n employee of a subcontractor engaged upon the subject matter of the contract who is injured on, in or about the premises on which the principal contractor has undertaken to execute the work, can [not] maintain an action in tort against the principal [or intermediate] contractor where the subcontractor is an independent contractor and where workers’ compensation benefits were paid by the subcontractor.” Wright Assoc. v. Rieder, 247 Ga. 496, 497 (1) (277 SE2d 41) (1981). Appellant’s deceased husband was employed by Superior. Superior was a subcontractor of appellee CCCP for the construction project. Although appellee CCCP was apparently the manufacturer of the sewer tank that caused the crane to tip over, it was also a subcontractor of appellee Lovern for the construction project. See generally Rickets v. Tri-State Systems, 177 Ga. App. 509 (1) (339 SE2d 732) (1986). Compare Modlin v. Swift Textiles, 180 Ga. App. 726 (350 SE2d 273) (1986). Appellant has alleged no cause of action against appellee CCCP in its capacity as the manufacturer of the sewer tank. There are no allegations that the sewer tank itself was a negligently or defectively manufactured product. The alleged negligence of appellee CCCP consists only of its representation to Superior that the weight of the sewer tank was less than it actually was. Since appellee CCCP had contracted with Superior to lift the sewer tank into position at the construction site, it is clear that this allegedly negligent representation was not made to Superior in appellee CCCP’s capacity as the [806]*806manufacturer of the sewer tank, but solely in its capacity as appellee Lovern’s subcontractor for the installation of the sewer tank.

We are aware of no authority for the proposition that an allegedly negligent intermediate contractor may not avail himself of the immunity granted to statutory employer simply because he also incidentally occupies the capacity of a manufacturer. “ [N] otwithstanding its [manufacture] of the [sewer tank], appellee [CCCP] was, as to [appellee Lovern], a ‘contractor.’ ‘Contractor’ is defined as one ‘ “who contract^] to perform certain work, such as the furnishing of goods and service, for another. . . .” [Cit.]’ [Cit.] Since the contract with [Superior] was entered into in specific furtherance of [appellee CCCP’s] contractual obligation to [appellee Lovern] rather than [in] its [capacity as the manufacturer], appellee [CCCP] would be the ‘principal’ contractor as to those services. Appellee [CCCP] owed the primary obligation to [appellee Lovern] and the obligation, in turn, was owed to appellee [CCCP] by [Superior]. [Appellant’s deceased], an employee of [Superior], was [killed] while performing these obligations.” Rickets v. Tri-State Systems, supra at 510. Appellee Lovern was itself a subcontractor of the general contractor for the project. Appellant was paid workers’ compensation benefits by Superior. Under these circumstances, appellees CCCP and Lovern, as intermediate contractors, were the statutory employers of appellant’s deceased husband and, as such, they are not liable in tort for his death. See Wright Assoc. v. Rieder, supra. The trial court correctly granted summary judgment in favor of appellees.

2. Appellees’ motion for the imposition of damages for a frivolous appeal is denied.

Judgments affirmed.

Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope and Benham, JJ., concur. Beasley, J., dissents.

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383 S.E.2d 144, 191 Ga. App. 805, 1989 Ga. App. LEXIS 803, 1989 WL 105321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/landrum-v-cobb-county-concrete-products-inc-gactapp-1989.

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