City of Dalton v. Gene Rogers Construction Co.

Andrews, Judge.

The City of Dalton appeals the trial court’s order granting Gene Rogers Construction Company’s motion for summary judgment. The City argues on appeal that the trial court erred in finding its third party indemnity action against Rogers Construction under the High-voltage Safety Act, OCGA § 46-3-30 et seq., was barred by the exclusive remedy provision of the Workers’ Compensation Act. We disagree and affirm the judgment of the trial court.

This action arose out of an injury to one of Rogers Construction’s employees, Danny Headrick. Headrick received a severe electrical shock when a piece of iron he was trying to reposition came into contact with a power line owned by the City of Dalton d/b/a Dalton Utilities. Headrick and his wife sued the City for negligence and loss of consortium. The City denied liability and filed a third-party indemnity action against Rogers Construction pursuant to Georgia’s High-voltage Safety Act. The pertinent provisions of this Act are as follows: “No person, firm or corporation shall commence any work . . . if at any time any person or any [work-related] item . . . may be brought within ten feet of any high-voltage line unless and until. . . [t]he person responsible for the work has given the notice required by [the provisions of the Act]; and . . . [t]he owner or operator of such high-voltage line has effectively guarded against danger from acci*820dental contact by either de-energizing and grounding the line, relocating it, or installing protective covering or mechanical barriers, whichever safeguard is deemed by the owner or operator to be feasible under the circumstances.” (Emphasis supplied.) OCGA § 46-3-33. “The person responsible for the work shall be responsible to assure that the [abovementioned] safety requirements . . . are completed prior to the commencement of any such work.” (Emphasis supplied.) OCGA § 46-3-34 (e). In the event that the person responsible for the work fails to assure that the safety requirements have been met, and “subsequent activities within the vicinity of high-voltage lines result in damage to utility facilities or result in injury or damage to person or property [the person responsible for the work] shall be strictly liable for said injury or damage. . . . [The] person [responsible for the work] 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.” (Emphasis supplied.) OCGA § 46-3-40 (b).

Rogers Construction moved for summary judgment, seeking dismissal of Dalton’s third-party action on the ground that it was barred by the exclusive remedy provision of the Workers’ Compensation Act, which states that “[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. . . .” OCGA § 34-9-11 (a). Accordingly, the employee may not sue the employer in tort, and the employer may not be impleaded as a joint tortfeasor in an employee’s action against a third party. See, e.g., Weller v. Brown, 266 Ga. 130 (464 SE2d 805) (1996); K-Mart Apparel Corp. v. Temples, 260 Ga. 871 (401 SE2d 5) (1991); Sargent Indus. v. Delta Air Lines, 251 Ga. 91 (303 SE2d 108) (1983).

The trial court granted Rogers Construction’s motion for summary judgment. Thereafter, the Headricks obtained a $300,000 verdict against the City, and the City now appeals the grant of summary judgment to Rogers Construction on the City’s third-party claim for indemnification.

The trial court correctly found the High-voltage Safety Act did not create an exception to the exclusive remedy provision of the Workers’ Compensation Act. In Pappas v. Hill-Staton Engineers, 183 *821Ga. App. 258, 259-260 (358 SE2d 625) (1987), a case almost directly on point, we found that, absent a specific statutory provision making an exception to the exclusive remedy provision, workers’ compensation laws relieved employers, not only of common law liability, but also of statutory liability under federal and state statutes. Id. at 260. While Pappas interpreted the Crane Act, a predecessor to the High-voltage Safety Act, which did not include the provision on strict liability1 and indemnification, the underlying issue is the same, namely, whether the Crane Act superseded the allegedly conflicting provisions of the Workers’ Compensation Act. Id. at 258.

In Pappas, a wrongful death action was brought against the deceased’s employer under the Crane Act, which imposed safety standards on, and created a theory of liability against, employers and owners and operators of hazardous high-voltage lines. Id. at 259. This Court held that “[i]t would be improper to declare the Crane Act to be an exception to the long-standing exclusive remedy provision.” Pappas at 260-261, noting that the exclusive remedy provision “relieves the employer of not only common law [tort] liability, but also of statutory liability under state and federal statutes” (Emphasis supplied.) Id. at 260. See also Larson, The Law of Workmen’s Compensation, § 65.30 (1996) (“the exclusiveness rule relieves the employer not only of common-law tort liability, but also of statutory liability under all state and federal statutes, as well as of liability in contract and in admiralty, for an injury covered by the compensation act”).

The City’s reliance on Gen. Telephone Co. &c. v. Trimm, 252 Ga. 95 (311 SE2d 460) (1984), and Seaboard Coast Line R. Co. v. Maverick Materials, 167 Ga. App. 160 (305 SE2d 810) (1983), is misplaced. As this Court was careful to point out in Seaboard, the issue in that case was one of contractual liability and whether an employer could waive the benefits of OCGA § 34-9-11 by express contract. Seaboard, supra at 162. The Court noted that third-party actions against an employer by a joint tortfeasor for contribution were still precluded by OCGA § 34-9-11, and the opinion makes clear that the employer is still immunized from any further liability in tort. Seaboard, supra. Accordingly, Seaboard and Gen. Telephone are not helpful in this case.

The rules of statutory construction also mandate against a finding that the legislature intended to supersede the exclusive remedy provision. “ ‘[I]t is well settled in this jurisdiction that all statutes are presumed to be enacted by the legislature with full knowledge of the *822existing condition of the law and with reference to it; that they are to be construed in connection and in harmony with the existing law; and that their meaning and effect will be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and the decisions of the courts.’ [Cits.]” Buice v. Dixon, 223 Ga. 645 (157 SE2d 481) (1967). Accordingly, we presume the legislature was aware of the exclusive remedy provision when they enacted the strict liability and indemnification provisions of the High-voltage Safety Act and they did not intend to create a conflict between the two. Thus, we will not find a subsequent statute supersedes the exclusive remedy provision absent an express statement that the legislature intended it to do so. See Bryant v. Wal-Mart Stores, 203 Ga. App. 770, 772 (417 SE2d 688) (1992) (there is nothing in the language of the RICO statute which indicates RICO was intended to supersede the exclusivity provisions of the Workers’ Compensation Act); Pappas, supra.

Therefore, for the reasons discussed above, we find that without an express provision stating that the indemnification section of the High-voltage Safety Act was intended to supersede the exclusive remedy provision of the Workers’ Compensation Act, the City of Dalton cannot pursue a claim for indemnification against the employer, Gene Rogers Construction Company. Accordingly, the trial court correctly granted summary judgment to Rogers Construction.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Johnson, Blackburn, Smith and Ruffin, JJ, concur. McMurray, P. J., and Pope, P. J., dissent.

Indeed, if we find that the indemnification provision of the Act supersedes the exclusive remedy provision, it follows that the strict liability imposed upon the employer by this same provision could also be an exception to the provision.