dissenting.
Because I disagree that the exclusive remedy provision of the Workers’ Compensation Act bars Ridley from bringing this suit, I respectfully dissent from the majority opinion.
When she was injured, Ridley was a passenger in her co-worker Monroe’s car while on a lunch break. She alleged in her complaint that Monroe was speeding and collided with another car that pulled out of a driveway into the road. She apparently suffered a broken neck and incurred more than $20,000 in medical expenses. She filed a workers’ compensation claim that day, which her employer controverted four months later, and then filed this personal injury action against Monroe shortly before the two-year statute of limitation ran. Monroe denied liability and raised the affirmative defense of the exclusive remedy provision, among other defenses.
The record includes a copy of a “Compromise Stipulation and Agreement” among Ridley, the employer, and the workers’ compensation carrier, filed with the State Board of Workers’ Compensation. In it, the employer and insurer recite their contention that Ridley “was not injured in and out of the course of her employment with the employer.” The parties agreed that Ridley’s claim “is not compensable under Georgia Workers’ Compensation Law,” and sought an award by the Board denying liability on behalf of the employer and insurer. The document also refers to a “lump sum settlement,” but includes no reference to the amount of monetary payment.
Monroe argued on summary judgment that the workers’ compensation settlement agreement barred Ridley’s personal injury suit against her, and the trial court agreed. We now consider whether a settlement agreement in which the employee, employer, and insurer agree that the employee’s injury is not covered by the Act constitutes a right and remedy granted to the employee by the Act that bars a lawsuit against an allegedly negligent co-worker.
OCGA § 34-9-11 (a) provides that “[t]he rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death. . . .” We have reversed a summary judgment granted to a defendant under the exclusive remedy provision where we concluded that the evidence was conflicting as to whether the employee was injured in the scope of her employment. Wade v. Ga. Diversified Indus., 240 Ga. App. 225 (522 SE2d 746) (1999). We have no such conflict here; the evidence of record establishes that Ridley was not injured in the scope of her employment, and thus her personal injury suit should not be barred.
Monroe has not met her burden of proving Ridley is covered under the Act.
*691A defendant may assert coverage by the Workmen’s Compensation Act as a bar to a common law negligence action against him arising out of the same occurrence. And this is true whether or not a claim for compensation has been made. But in order to sustain such assertion one must plead and prove coverage under the Act. If there were an award of compensation it would, of course, be an adjudication of coverage and consequently a bar to a common law action. On the other hand, if there were an award of no compensation because of no coverage under the Act, it would be an adjudication of no coverage and the common law action should proceed. But the record indicates that, as yet, there has been no award and hence no adjudication either way, and if the defendants are to sustain their plea they have the burden of showing coverage as a bar.
(Citation omitted.) Bishop v. Weems, 118 Ga. App. 180, 181 (4) (162 SE2d 879) (1968).
A 2000 amendment to OCGA § 34-9-15 (b) authorizes the Board to approve a stipulated settlement between the parties that concludes there is no liability under this chapter. The record contains a settlement agreement in which Ridley and her employer agree that the injury she suffered while on a lunch break is not compensable under Georgia workers’ compensation law.
We are in no position to otherwise conclude that Ridley’s claim was compensable. “[I]t is well-settled law in this state that where a ‘rest break’ or ‘lunch break’ is provided to an employee, during which time the employee is free to use the time as he chooses, making it personal to him, an injury occurring during the break period arises out of personal pursuit and not out of the employment and is not compensable.” Blair v. Ga. Baptist Children’s Home &c., 189 Ga. App. 579, 582 (2) (377 SE2d 21) (1988).
The majority notes that the legislature did not indicate in OCGA § 34-9-15 (b) that no-liability stipulations remove a claim from the exclusive remedy restriction. The conclusion that the exclusive remedy provision does not apply if there is no liability under the Act would seem to follow naturally, without explicit direction. Further, “the Board had already been approving such no-fault settlements, and the change codified that practice” rather than creating a new practice. 17 Ga. State U. L. Rev. 231, 234, fn. 32 (2000).
For these reasons, I respectfully dissent.
I am authorized to state that Judge Phipps joins in this dissent.
*692Decided July 2, 2002 Reconsideration denied July 25, 2002. Carl A. Veline, Jr., for appellant. Martin, Snow, Grant & Napier, John C. Daniel III, Richard A. Epps, Jr., for appellee.