Georgia Power Co. v. Franco Remodeling Co.

Beasley, Judge,

concurring specially.

The trial court was correct. The reason Georgia Power Company as “owner or operator of [the] high-voltage lines” was not entitled to recover “costs incurred in defending [plaintiffs’] claims,” as permitted by OCGA § 46-3-40 (b) by way of indemnification from the noncomplying employer, is that the employer provided workers’ compensation coverage to the plaintiffs/employees. City of Dalton v. Gene Rogers Constr. Co., 223 Ga. App. 819 (479 SE2d 171) (1996).

The legislature has decided the public policy in such instances and has chosen to assign the risks in this manner. No one wishes to expose workers to injury or death from electric lines. To protect against it, the High-voltage Safety Act imposes strict liability and even criminal penalty when the legally required precautions are not taken. OCGA § 46-3-40. But it is a deeply imbedded and longstanding public policy to protect workers injured in any work-related incident, regardless of the means, by the expedient of workers’ compensation coverage which allows recovery without regard to fault. OCGA § 34-9-1 et seq. The rights and remedies provided by the workers’ compensation law are exclusive, OCGA § 34-9-11, and the employer who complies with that law is relieved of other types of claims as quid pro quo. Since the legislature chose not to make an exception for the reach of the High-voltage Safety Act, the courts must enforce the will the legislature has expressed. It is best equipped to weigh the competing interests and to structure liabilities after taking the various risks and benefits into account when decid*644ing that one scheme as opposed to another would best serve the public. The court has no power to substitute its wisdom in such instances.

Without notice, the owner or operator of electric lines is spared liability even where they are not properly located and maintained. Santana v. Ga. Power Co., 269 Ga. 127 (498 SE2d 521) (1998). But that means also that where the innocent utility owner is hauled into court without justification2 and the law expressly allows indemnification to it for defense costs,3 the humane purposes of the workers’ compensation law are impliedly favored by the legislature over the interest of the utility owner or operator.

In consequence, by providing workers’ compensation benefits to the injured employee, even the employer who neglects to notify the electric line owner or operator is shielded from indemnity liability. This may be seen as part of the incentive to assure benefits to the injured employee. That is not to say that the employer then has little incentive to fulfill the notice requirement of OCGA § 46-3-33; it is still subject to criminal penalty, not to mention humanitarian motivations and workers’ compensation costs.

Georgia Power Company’s arguments imploring that City of Dalton should be overruled would be more appropriate for the ears of the legislature.

On Motion for Reconsideration.

On June 16, the day after our opinion in the above case was decided, the Supreme Court of Georgia granted cert. in Flint EMC v. Ed Smith Constr. Co., 229 Ga. App. 838 (495 SE2d 136) (1997), specifically on the issue of whether the exclusive remedy provisions of the Workers’ Compensation Act can preclude claims for indemnity under the High-voltage Safety Act. In its motion for reconsideration, Georgia Power argues that this Court should reconsider its decision in the above case or vacate the opinion until the Supreme Court rules in the Flint EMC case. Although we are constrained by existing law in the present case, we note that the dissent in City of Dalton v. Gene Rogers Constr. Co., 223 Ga. App. 819, 822 (479 SE2d 171) (1996), espoused a different position. Although the Supreme Court may adopt the position taken by the dissent in City of Dalton, the Georgia Constitution mandates that this opinion issue within two terms and we are unable to delay our decision to await the Supreme Court’s pronouncement.

*645Decided June 15, 1998 Reconsideration denied July 30, 1998 Troutman Sanders, Scott A. Farrow, Robert L. Pennington, for appellant. Magill & Atkinson, David M. Atkinson, for appellee.

As in this case due to Callaway v. Crown Crafts, 223 Ga. App. 297, 299 (3) (477 SE2d 435) (1996).

OCGA § 46-3-40 (b).