Georgia Power Co. v. Franco Remodeling Co. , 233 Ga. App. 640 ( 1998 )

Pope, Presiding Judge.

The sole issue in this case is whether the workers’ compensation exclusive remedy provisions of OCGA § 34-9-11 (a) bar the express indemnity provisions of the High-voltage Safety Act, OCGA § 46-3-40 (b). Based on this Court’s decision in City of Dalton v. Gene Rogers Constr. Co., 223 Ga. App. 819 (479 SE2d 171) (1996), which concluded that “the High-voltage Safety Act [does] not create an exception to the exclusive remedy provision of the Workers’ Compensation Act,” id. at 820, we are constrained to affirm the superior court’s grant of summary judgment to Franco Remodeling.

In July 1993, plaintiffs Salomen Santana, Juan Santillan and Hector Berrios were painting an apartment building and were injured when a metal ladder they were using touched an overhead electric line that was owned and operated by Georgia Power Company. There was no dispute that at the time of the accident, the plaintiffs were working for Franco Remodeling (“Franco”), a subcontractor engaged in a renovation project.

In July 1994, plaintiffs sued Georgia Power and the manager of the apartment complex. Plaintiffs later amended the complaint to include allegations against the owner and owner representative of the property. Plaintiffs alleged that Georgia Power negligently installed and maintained the power cable; that Georgia Power failed to adequately insulate the line; and that Georgia Power failed to warn others of the extremely high voltage present in the line. Plaintiffs’ other allegations included claims that the managers of the apartment complex had superior knowledge of the danger of the high-voltage line and were liable for their failure to warn plaintiffs.¹

Georgia Power answered the complaint, claiming that plaintiffs’ suit was barred by OCGA § 46-3-30 et seq., because the work was being done within ten feet of a high-voltage line and no notice of the work had been given to it or to the Utilities Protection Center. Franco and Gulf Insurance Company filed a motion to intervene. They argued that Franco, through its insurer, Gulf, had paid more than $700,000 in workers’ compensation benefits to the plaintiffs and that intervention was necessary to protect and enforce their subrogation lien under OCGA § 34-9-11.1 in the event that plaintiffs recovered. Georgia Power cross-claimed against Franco, claiming that under the High-voltage Safety Act, Franco was liable for plaintiffs’ damages and for Georgia Power’s defense costs.

Franco then filed a motion for summary judgment, arguing that because the plaintiffs’ injuries indisputably arose from their employment, Georgia Power’s claims were barred by the exclusivity provisions of OCGA § 34-9-11 (a). Georgia Power filed a cross-motion for partial summary judgment, arguing that there was no dispute that Franco had failed to comply with the provisions of the High-voltage Safety Act, and that there was no issue as to Franco’s liability to indemnify Georgia Power against the plaintiffs’ claims.

In Santana v. Ga. Power Co., 269 Ga. 127 (498 SE2d 521) (1998), our Supreme Court affirmed the trial court’s grant of summary judgment to Georgia Power on the issue of Georgia Power’s liability to the plaintiffs. Santana concluded that the trial court’s grant of summary judgment to Georgia Power was proper because of the appellants’ and their employer’s failure to give the statutorily required notice of the work near a high-voltage line. Accordingly, Georgia Power’s cross-claim against Franco for indemnification is moot. Nevertheless, based on OCGA § 46-3-40 (b), Georgia Power also asserted a claim for defense costs and that claim is not rendered moot by the Supreme Court decision.

We conclude that the superior court properly granted Franco’s motion for summary judgment, correctly concluding that the case was controlled by City of Dalton v. Gene Rogers Constr. Co., 223 Ga. App. 819. See also Flint Elec. Membership Corp. v. Ed Smith Constr. Co., 229 Ga. App. 838 (495 SE2d 136) (1997); Preston v. Ga. Power Co., 227 Ga. App. 449, 452 (1) (489 SE2d 573) (1997); compare Allen v. King Plow Co., 227 Ga. App. 795 (490 SE2d 457) (1997).

The pertinent provisions of OCGA § 46-3-40 (b) of the High-voltage Safety Act are as follows: “ ‘[a]ny person responsible for the work who violates the requirements of Code Section 46-3-33 (required conditions for commencing work within ten feet of high-voltage line) and whose subsequent activities within the vicinity of high-voltage lines result in . . . injury or damage to person or property shall be strictly liable for said injury or damage. Any such person shall also indemnify the owner or operator of such high-voltage lines against all claims, if any, for personal injury, including death, property damage, or service interruptions, including costs incurred in defending any such claims resulting from work in violation of Code Section 46-3-33.’ ” Flint Elec. Membership Corp. v. Ed Smith Constr. Co., 229 Ga. App. at 839.

OCGA § 34-9-11 (a) provides: “[t]he rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee, ... at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tort-feasor, other than an employee of the same employer or any person who, pursuant to a contract or agreement with an employer, provides workers’ compensation benefits to an injured employee. . . .”

In City of Dalton and Flint Elec. Membership Corp., the appellants argued that they were entitled to indemnity under the provisions of the High-voltage Safety Act and that such indemnity was not barred by the exclusive remedy provision of the Workers’ Compensation Act. In both cases, this Court held that the High-voltage Safety Act does not create an exception to the exclusive remedy provision of the Workers’ Compensation Act. Based on the holdings of these cases, we affirm the grant of summary judgment to Franco.

In concluding, we note that the dilemma posed by the interrelation of these two statutes is complex. On the one hand, the rights and remedies provided by workers’ compensation law protect workers who are injured in any work-related incident. On the other hand, the High-voltage Safety Act was enacted to protect workers from injury or death from electric lines. Thus, the High-voltage Safety Act imposes strict liability and even criminal penalty when the legally required precautions are not taken. OCGA § 46-3-40. By not making an exception in the workers’ compensation statute for the High-voltage Safety Act, the legislature has expressed its will that the exclusivity provisions of the workers’ compensation statute prevail. But, in deciding not to create an exception to the workers’ compensation bar, the legislature has taken the teeth out of the High-voltage Safety Act. The present interpretation of the two statutes means that an employee who has been paid workers’ compensation benefits can never enforce the High-voltage Safety Act in a suit against his/her employer. Regardless of other incentives available under the statute to ensure employer compliance with the its provisions, in reality, this interpretation means that few injured workers can avail themselves of the protection of the High-voltage Safety Act.

Judgment affirmed.

Ruffin, J., concurs. Beasley, J., concurs specially.

1 In Santana v. First Guaranty Mgmt. Corp., 223 Ga. App. 472 (477 SE2d 857) (1996), this Court reversed the grant of summary judgment to the owners/manager of the apartment building.