Pizza Hut of America, Inc. v. Hood , 198 Ga. App. 112 ( 1990 )

Deen, Presiding Judge.

On May 22, 1988, Pizza Hut of America, Inc., sponsored a picnic for its employees and their families at a Clarke County park. Employee Melvin Hood, Jr., drowned in a lake at the park during the picnic. Hood’s parents and the administrator of Hood’s estate sued Pizza Hut and Clarke County. Pizza Hut appeals from the trial court’s grant of partial summary judgment for the plaintiffs on Pizza Hut’s defense that the Workers’ Compensation Act provided the exclusive remedy. Clarke County appeals from the denial of its motion for summary judgment based on its defense of sovereign immunity.

Case No. A90A1124

1. Recreational or social activities are within the course of employment, and thus subject to the Workers’ Compensation Act if, (1) they occur on work premises during a lunch or recreation period as a regular incident of employment, or (2) employee participation is required, either expressly or by implication, or (3) the employer derives a substantial benefit from the event beyond the improvement in employee health and morale that is common to all kinds of recreational or social activities. Crowe v. Home Indem. Co., 145 Ga. App. 873 (245 SE2d 75) (1978). The Pizza Hut picnic did not occur on work premises, and although employee attendance was encouraged, it was not required. Accordingly, the first two possible bases for workers’ compensation coverage are absent in the instant case. Pizza Hut contends coverage applies under the third base because the picnic was more than just a morale and health booster for employees, but also had the purpose of promoting its new product of traditional hand-tossed pizza and recruiting and maintaining employees. There is no evidence in the record that Pizza Hut made any effort at the picnic to promote a new product. The only possible benefit that Pizza Hut could have hoped to derive from the function was improvement in employee health and morale. Employers generally attempt to boost employee morale not only for morale’s sake, but for the benefits to the company resulting from better employee morale. These inestimable benefits, however, are not of the kind that subjects an employer-sponsored recreational or social activity to the Workers’ Compensation Act. The trial court properly granted partial summary judgment for the appellees.

Case No. A90A1382

2. In 1986 Clarke County specifically decided against purchasing liability insurance for claims against the county and its employees, agents and officers. At the time of Hood’s drowning, Clarke County’s policy was to defend against and pay such claims from a “Self-Funded Insurance Internal Service Fund.” Apparently on the basis that this allocation of funds constituted a self-insurance plan that waived sovereign immunity, the trial court denied Clarke County’s motion for summary judgment on that defense.

The Supreme Court has recently held that “under the statutes dealing with liability insurance for government employees and officials [OCGA § 45-9-1 et seq.], only state self-insurance plans will waive sovereign immunity. There is no provision for a county to set up a self-insurance plan.” Logue v. Wright, 260 Ga. 206, 209 (392 SE2d 235) (1990). Consequently, Clarke County’s “Self-Funded Insurance Internal Service Fund” was not a self-insurance plan that could waive sovereign immunity, and Clarke County was entitled to summary judgment on that issue.

Judgment affirmed in Case No. A90A1124. Corley,

C. J., McMurray, P. J., Banke, P. J., Birdsong, Pope and Cooper, JJ., concur. Sognier and Beasley, JJ., dissent. Judgment reversed in Case No. A90A1382. Carley, C. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope, Beasley and Cooper, JJ., concur.