FOURTH DIVISION MERCIER, C. J., DILLARD, P. J., and LAND, J.
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. https://www.gaappeals.us/rules
April 24, 2025
In the Court of Appeals of Georgia A25A0123. DIAZ ARRIOLA v. COLEMAN et al.
LAND, Judge.
This is an appeal from a grant of summary judgment to Keith Coleman and his
insurance agency (“defendants”) in plaintiff Vinicio Diaz Arriola’s suit for
negligence, breach of contract, and vicarious liability arising from his loss of a lower
arm in a workplace accident. On appeal, plaintiff argues that the trial court erred in
excluding testimony from the company owner and an expert witness and that a
genuine issue remains concerning defendants’ negligence in allowing a lapse in the
company’s comprehensive general liability (CGL) coverage. We find no error and
affirm.
To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.
(Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491, 491 (405 SE2d 474) (1991).
Although we view the record in favor of plaintiff, the relevant facts are not in
dispute. Storm Safe, a tree removal company, was formed in 2011 by Robert Byrd.
Plaintiff joined Storm Safe as the fourth man on its work crew by January 2015, driving
the chipper truck and assisting in feeding brush into the chipper. Plaintiff earned a flat
rate per day, with checks issued at the end of each week. Storm Safe also had two
office workers, including Byrd’s wife. Coleman, Storm Safe’s insurance agent,
provided Byrd with an application for workers compensation insurance and advised
him that he needed the coverage, but Byrd did not return the application.
Coleman had previously helped Byrd obtain a CGL policy, which went into
effect on January 24, 2014, for a period of one year and provided $1 million per
occurrence for bodily injury. The CGL policy contains an employer’s liability
exclusion and endorsement, however: “This insurance does not apply to: . . . ‘[b]odily
injury’ to any ‘employee’ of any insured arising out of or in the course of: (a)
2 [e]mployment by any insured; or (b) [p]erforming duties related to the conduct of any
insured’s business[.]” The main portion of the policy defines “employee” as
including a “leased worker” but not a “temporary worker,” which is also defined as
“a person who is furnished to [the insured] to substitute for a permanent ‘employee’
on leave or to meet seasonal or short-term workload conditions.” The relevant
endorsement, however, substitutes its own definition of “employee” as “includ[ing],
but . . . not limited to any person or persons hired, loaned, leased, contracted, or
volunteering for the purpose of providing services to or on behalf of any insured,
whether or not paid for such services and whether or not an independent contractor.”
After the insurer sent a renewal application to the wrong email address, the
CGL policy lapsed on January 24, 2015. A renewal policy containing identical relevant
terms was eventually issued on March 27, 2015. In the meantime, however, on March
24, 2015, plaintiff drove the crew to a work site and, while oiling the chipper, placed
his hand in an air intake valve rather than on a handle, resulting in the severing of his
left arm just below the elbow.
In April 2015, plaintiff filed a workers’ compensation claim naming Storm Safe
as his employer. On December 14, 2016, after learning that Storm Safe did not have
workers’ compensation insurance at the time of the accident, plaintiff filed a
3 negligence action against Storm Safe. The company did not file an answer, and an $8
million default judgment against it was entered on March 23, 2017. In late 2018, Byrd
and Storm Safe assigned any cause of action they might have against defendants to
plaintiff in exchange for $25,000 and a reduction in the default judgment to $3 million.
On December 13, 2018, plaintiff filed the instant action against defendants for
negligence, breach of contract, and vicarious liability arising from Storm Safe’s lack
of workers’ compensation coverage and the lapse in its CGL coverage.
In his September 2019 deposition, Byrd testified that “[t]he reason that I didn’t
have [workers’ compensation insurance] before is [be]cause I couldn’t afford it; and
after going through everything I just went through, I still can’t afford it. Okay. It’s not
possible.” After defendants moved for summary judgment in November 2019,
however, plaintiff filed an affidavit in which Byrd averred for the first time that he
“would have bought [workers’ compensation insurance]” if Coleman had “explained
to [him] that Storm Safe was not covered by the [CGL] policy against lawsuits from
employees injured on the job” and that he had needed workers’ compensation
insurance “to protect Storm Safe from liability claims from injured employees.”
Plaintiff also filed an affidavit from Tim Ryles, a former Insurance Commissioner, who
averred that Coleman was negligent in allowing the CGL policy, which in his
4 judgment would have covered plaintiff’s injuries because he was a “temporary
worker,” to lapse, and in failing to obtain workers’ compensation coverage for Storm
Safe.
The trial court struck Byrd’s affidavit under the Prophecy1 rule because it
“directly contradicted” his deposition testimony as to why Storm Safe did not
procure workers’ compensation insurance. The trial court also struck the Ryles
affidavit on the ground that its conclusions were either legal or speculative. The trial
court granted defendants’ motion for summary judgment on the grounds that plaintiff
was not a “temporary worker” covered by the policy; that the failure to obtain
workers compensation coverage was the fault of Byrd, not defendants; and that
workers’ compensation “was the exclusive remedy for the plaintiff’s injury.”
1. The crux of this appeal is plaintiff’s assertion that the grant of summary
judgment was erroneous because issues of material fact remain concerning
defendants’ negligence in allowing the CGL policy to lapse and in failing to convince
Byrd to obtain a workers’ compensation policy. We disagree.
1 See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2)-(3) (343 SE2d 680) (1986) (barring a party’s self-contradictory and unexplained testimony from consideration on motion for summary judgment). 5 OCGA § 34-9-11 (a) establishes workers’ compensation as the exclusive
remedy, barring exceptions not applicable here, for on-the-job injuries:
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FOURTH DIVISION MERCIER, C. J., DILLARD, P. J., and LAND, J.
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. https://www.gaappeals.us/rules
April 24, 2025
In the Court of Appeals of Georgia A25A0123. DIAZ ARRIOLA v. COLEMAN et al.
LAND, Judge.
This is an appeal from a grant of summary judgment to Keith Coleman and his
insurance agency (“defendants”) in plaintiff Vinicio Diaz Arriola’s suit for
negligence, breach of contract, and vicarious liability arising from his loss of a lower
arm in a workplace accident. On appeal, plaintiff argues that the trial court erred in
excluding testimony from the company owner and an expert witness and that a
genuine issue remains concerning defendants’ negligence in allowing a lapse in the
company’s comprehensive general liability (CGL) coverage. We find no error and
affirm.
To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.
(Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491, 491 (405 SE2d 474) (1991).
Although we view the record in favor of plaintiff, the relevant facts are not in
dispute. Storm Safe, a tree removal company, was formed in 2011 by Robert Byrd.
Plaintiff joined Storm Safe as the fourth man on its work crew by January 2015, driving
the chipper truck and assisting in feeding brush into the chipper. Plaintiff earned a flat
rate per day, with checks issued at the end of each week. Storm Safe also had two
office workers, including Byrd’s wife. Coleman, Storm Safe’s insurance agent,
provided Byrd with an application for workers compensation insurance and advised
him that he needed the coverage, but Byrd did not return the application.
Coleman had previously helped Byrd obtain a CGL policy, which went into
effect on January 24, 2014, for a period of one year and provided $1 million per
occurrence for bodily injury. The CGL policy contains an employer’s liability
exclusion and endorsement, however: “This insurance does not apply to: . . . ‘[b]odily
injury’ to any ‘employee’ of any insured arising out of or in the course of: (a)
2 [e]mployment by any insured; or (b) [p]erforming duties related to the conduct of any
insured’s business[.]” The main portion of the policy defines “employee” as
including a “leased worker” but not a “temporary worker,” which is also defined as
“a person who is furnished to [the insured] to substitute for a permanent ‘employee’
on leave or to meet seasonal or short-term workload conditions.” The relevant
endorsement, however, substitutes its own definition of “employee” as “includ[ing],
but . . . not limited to any person or persons hired, loaned, leased, contracted, or
volunteering for the purpose of providing services to or on behalf of any insured,
whether or not paid for such services and whether or not an independent contractor.”
After the insurer sent a renewal application to the wrong email address, the
CGL policy lapsed on January 24, 2015. A renewal policy containing identical relevant
terms was eventually issued on March 27, 2015. In the meantime, however, on March
24, 2015, plaintiff drove the crew to a work site and, while oiling the chipper, placed
his hand in an air intake valve rather than on a handle, resulting in the severing of his
left arm just below the elbow.
In April 2015, plaintiff filed a workers’ compensation claim naming Storm Safe
as his employer. On December 14, 2016, after learning that Storm Safe did not have
workers’ compensation insurance at the time of the accident, plaintiff filed a
3 negligence action against Storm Safe. The company did not file an answer, and an $8
million default judgment against it was entered on March 23, 2017. In late 2018, Byrd
and Storm Safe assigned any cause of action they might have against defendants to
plaintiff in exchange for $25,000 and a reduction in the default judgment to $3 million.
On December 13, 2018, plaintiff filed the instant action against defendants for
negligence, breach of contract, and vicarious liability arising from Storm Safe’s lack
of workers’ compensation coverage and the lapse in its CGL coverage.
In his September 2019 deposition, Byrd testified that “[t]he reason that I didn’t
have [workers’ compensation insurance] before is [be]cause I couldn’t afford it; and
after going through everything I just went through, I still can’t afford it. Okay. It’s not
possible.” After defendants moved for summary judgment in November 2019,
however, plaintiff filed an affidavit in which Byrd averred for the first time that he
“would have bought [workers’ compensation insurance]” if Coleman had “explained
to [him] that Storm Safe was not covered by the [CGL] policy against lawsuits from
employees injured on the job” and that he had needed workers’ compensation
insurance “to protect Storm Safe from liability claims from injured employees.”
Plaintiff also filed an affidavit from Tim Ryles, a former Insurance Commissioner, who
averred that Coleman was negligent in allowing the CGL policy, which in his
4 judgment would have covered plaintiff’s injuries because he was a “temporary
worker,” to lapse, and in failing to obtain workers’ compensation coverage for Storm
Safe.
The trial court struck Byrd’s affidavit under the Prophecy1 rule because it
“directly contradicted” his deposition testimony as to why Storm Safe did not
procure workers’ compensation insurance. The trial court also struck the Ryles
affidavit on the ground that its conclusions were either legal or speculative. The trial
court granted defendants’ motion for summary judgment on the grounds that plaintiff
was not a “temporary worker” covered by the policy; that the failure to obtain
workers compensation coverage was the fault of Byrd, not defendants; and that
workers’ compensation “was the exclusive remedy for the plaintiff’s injury.”
1. The crux of this appeal is plaintiff’s assertion that the grant of summary
judgment was erroneous because issues of material fact remain concerning
defendants’ negligence in allowing the CGL policy to lapse and in failing to convince
Byrd to obtain a workers’ compensation policy. We disagree.
1 See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2)-(3) (343 SE2d 680) (1986) (barring a party’s self-contradictory and unexplained testimony from consideration on motion for summary judgment). 5 OCGA § 34-9-11 (a) establishes workers’ compensation as the exclusive
remedy, barring exceptions not applicable here, for on-the-job injuries:
The rights and the remedies granted to an employee by this chapter shall exclude and be in place of all other rights and remedies of such employee, his or her personal representative, parents, dependents, or next of kin, and all other civil liabilities whatsoever at common law or otherwise, on account of such injury, loss of service, or death[.]
This “‘statutory immunity from suit includes the statutory employer regardless
whether that statutory employer had actually paid the workers’ compensation benefits.’”
(Emphasis supplied.) Saxon v. Starr Indem. & Liability Co., 339 Ga. App. 495, 497 (1)
(793 SE2d 659) (2016), quoting Modlin v. Swift Textiles, Inc., 180 Ga. App. 726, 731 (2)
(350 SE2d 273) (1986).
Given the CGL policy endorsement’s expansive definition of “employee,”2 we
find it unnecessary to determine whether plaintiff is properly considered a “temporary
worker.” All versions of the CGL policy at issue explicitly exclude coverage for
injuries falling under the purview of the workers’ compensation law. And summary
2 Again, “includ[ing], but . . . not limited to any person or persons hired, loaned, leased, contracted, or volunteering for the purpose of providing services to or on behalf of any insured, whether or not paid for such services and whether or not an independent contractor[.]” 6 judgment is properly granted to an insurer when an insured’s policy contains an
applicable exclusion that is not against public policy. See Saxon, 339 Ga. App. at 498-
499 (2), (3) (workers’ compensation was plaintiff’s exclusive remedy for a work-
related injury; uninsured motorist provisions were “consistent with Georgia’s liability
and workers’ compensation statutes” and thus enforceable).
Here, it is undisputed that Storm Safe regularly operated four-man crews in the
weeks preceding plaintiff’s injury as well as on the day in question and that plaintiff
suffered that injury in the course of his employment. The Workers’ Compensation
Act thus applied to plaintiff’s claim, and the exclusion in the CGL policy would apply
had that policy not lapsed. See OCGA §§ 34-9-1 (3) - (4) (applying law to private
companies) and 34-9-2 (a) (2) (excluding business “that has regularly in service less
than three employees in the same business within this state”); Wills v. Clay Cty., 339
Ga. App. 79, 80-81 (1) (793 SE2d 432) (2016) (a business was subject to the Act
because it had three or more employees two to three times a year). Thus, even if we
were to accept as true the allegation that the defendants were negligent in allowing the
CGL policy to lapse, that assumed negligence did not cause this claim to go
uncovered. Where the Act applies, moreover, “it provides the employee’s exclusive
remedy against the employer.” Vratsinas Constr. Co. v. Chitwood, 314 Ga. App. 357,
7 359-360 (723 SE2d 740) (2012) (reversing denial of summary judgment to
construction company where plaintiff employee’s tort claim was barred under the
exclusive-remedy provision of the workers’ compensation statutes).
Further, as an employer subject to the Act, Storm Safe had the right to a
dismissal of plaintiff’s action against it as a matter of law. See Teasley v. Freeman, 305
Ga. App. 1, 5-6 (2) (699 SE2d 39) (2010) (affirming dismissal of employee’s suit
against employer based on the exclusive remedy provision of the Act). Instead of
asserting this right to a dismissal, Storm Safe failed to answer the lawsuit and allowed
it to go into default, leading to the entry of the default judgment that is now at the
heart of plaintiff’s claims against the defendants. Under these circumstances,
plaintiff’s attempt to recover the damages resulting from the default judgment from
Coleman and his agency fails for the simple reason that the defaulting defendant had
a dispositive defense that would have terminated the underlying action in its favor but
failed to assert that defense. See Emergency Professionals of Atlanta, P. C. v. Watson,
288 Ga. App. 473, 475 (1) (654 SE2d 434) (2007) (affirming a grant of summary
judgment to third-party defendants when the defaulting defendant now seeking
contribution and indemnity “had a defense available to it which would have defeated
the [original] action but failed to assert that defense”); Rogers v. Newell, 174 Ga. App.
8 453, 458 (2) (330 SE2d 392) (1985) (because plaintiffs settled lawsuit that could have
terminated in their favor, “the proximate cause of plaintiffs’ potential loss was not the
actions of defendants but their voluntary settlement with the tortfeasor’s insurance
carrier”). Because plaintiff, as the assignee of Storm Safe’s claims, took the claims
subject to all defenses that would have been good against Storm Safe had it pursued
an action against Coleman and his agency, the proximate cause defense that would
have barred Storm Safe’s claims also bars plaintiff’s claims. Pridgen v. Auto-Owners
Ins. Co., 204 Ga. App. 322, 322 (419 SE2d 99) (1992) (affirming the grant of a
defendant’s motion to dismiss when an assignee took the assignment of a claim
“subject to defenses against the assignor”; defendant was entitled to assert a statute
of limitation defense against the assignee just as it would have against the assignor).
For all these reasons, the trial court did not err when it granted summary
judgment to defendants.
2. In light of our disposition of the case in Division 1, we need not reach
plaintiff’s additional contentions.
Judgment affirmed. Dillard, P.J., and Mercier, C. J., concur.