Winn-Dixie Atlanta, Inc. v. Couch

193 Ga. App. 352 (1989)

387 S.E.2d 590

WINN-DIXIE ATLANTA, INC. v. COUCH et al.

A89A1478.

Court of Appeals of Georgia.

Decided October 17, 1989.

Rehearing Denied November 1, 1989.

Fain, Major & Wiley, Gene A. Major, Bruce A. Maxwell, for appellant.

Robert A. Falanga, Ronald F. Chalker, Jesse E. Barrow III, for appellees.

McMURRAY, Presiding Judge.

Cecil Wayne Couch, an employee of Automatic Icemaker Company, suffered an on-the-job injury while on the premises of Winn-Dixie Atlanta, Inc. ("Winn-Dixie"). Couch received workers' compensation benefits through his employer and filed a tort action against Winn-Dixie. Winn-Dixie denied the material allegations of the complaint and subsequently filed a motion for summary judgment. A major argument asserted by Winn-Dixie was that it was Couch's statutory employer under OCGA § 34-9-11.

The undisputed evidence showed that on May 28, 1985, Winn-Dixie *353 was in the final stages of a remodeling and renovation project at its "Winter's Chapel Road" grocery store when an ice machine, which had been installed by Winn-Dixie employees as part of the renovation project, was not functioning. Winn-Dixie did not have the resources to diagnose the malfunction and, as a consequence, one of Winn-Dixie's "installation supervisors . . . authorized subcontracting assistance from Automatic Icemaker Company. . . ." Automatic Icemaker Company sent Couch to investigate the problem and, while attempting to provide power to the ice machine, Couch fell through a dropped ceiling and onto a tile floor, sustaining serious injury.

The trial court denied Winn-Dixie's motion for summary judgment and Winn-Dixie filed an application for appeal pursuant to OCGA § 5-6-34 (b). We granted the appeal to determine whether Winn-Dixie is immune from tort liability as the statutory employer of Couch. Held:

"In Wright v. M. D. Hodges Enterprises, 183 Ga. App. 632 (359 SE2d 700) (1987), this court reviewed the criteria by which a statutory employer could be identified and noted that the rule set forth in Modlin v. Black & Decker Mfg. Co., 170 Ga. App. 477 (317 SE2d 255) (1984), created some confusion for the Eleventh Circuit in McCorkle v. United States, 737 F2d 957, 961 (11th Cir., 1984), because that court was unable to determine whether Georgia wanted the `contractor/not a contractor bright line rule' or an `owner plus' or `circumstances of the case' rule. Wright held that it intended to apply both rules. `If the owner is "merely in possession or control" of the premises upon which the employee of a company under contract to the owner is injured, then the so-called "bright line" rule would apply . . . if . . . the owner is not "merely in possession or control of the premises" but is actively [involved] in the enterprise in which the employee was injured, then the circumstances of the particular case should determine whether the owner is a statutory employer of the injured employee.' Id. at 633." Whitehead v. CHP, Ltd., 192 Ga. App. 417, 418 (385 SE2d 124) (1989). Compare Dross v. Southern Airways, 170 Ga. App. 481 (317 SE2d 300), where the occupier of the premises was not a principal contractor.

In the case sub judice, the evidence shows that Winn-Dixie was acting as its own general contractor, employing a "maintenance superintendent" and "three installation supervisors" to direct the renovation project. Winn-Dixie employees installed much of the equipment on the project and sub-contractors were brought in to install other equipment and fixtures. In fact, the ice machine that Couch was working on was set in place by Winn-Dixie employees and Winn-Dixie employees were assisting Couch before he fell. This evidence, and other undisputed evidence showing that Couch's employer was a sub-contractor of Winn-Dixie, required a finding that Winn-Dixie was *354 Couch's statutory employer. See Wright v. M. D. Hodges Enterprises, 183 Ga. App. 632, (359 SE2d 700) (1987) and Whitehead v. CHP, Ltd., 192 Ga. App. 417, supra. Consequently, the trial court erred in failing to grant Winn-Dixie's motion for summary judgment.

Judgment reversed. Carley, C. J., and Beasley, J., concur.