Underwood v. Burt , 185 Ga. App. 381 ( 1987 )

Banke, Presiding Judge.

Burt, a carpenter, was injured when the scaffolding from which he was working fell as it was being rolled to another location by a fellow employee and tipped over a loose two-by-four. He received workers’ compensation from Rooker Construction Company, the prime contractor and the company then carrying him on its payroll. He then sued CC & B, the subcontractor, and Underwood, a CC & B employee who was the job supervisor and the one alleged by Burt to have overseen the erection of the scaffolding. Summary judgment was granted to CC & B but denied to Underwood. We then granted Underwood’s application for an interlocutory appeal.

While Burt was carried on the payroll of Rooker at the time of the injury, he was working under the direction of CC & B’s job supervisor, Underwood, and there was no supervisor for Rooker on site. At other times and on other projects, Burt had been carried on CC & B’s payroll. On the project where Burt was injured, Rooker and CC & B had a written subcontract for CC & B to provide construction management for Rooker, the property owner and prime contractor. Rooker and CC & B shared officers and sometimes worked together on various projects, although CC & B also did work for other general contractors. When the two worked together, CC & B moved all of its carpenters to Rooker’s payroll; however, Underwood always remained on CC & B’s payroll.

In responding to the motions for summary judgment filed by CC & B and Underwood, Burt conceded that CC & B was entitled to immunity pursuant to the “loaned servant/loaned employee” doctrine. See United States Fidelity &c. Co. v. Forrester, 230 Ga. 182 (196 SE2d 133) (1973); Bosch v. Perry, 169 Ga. App. 28, 29 (1) (311 SE2d 481) (1983). The question before us is whether, if Burt is considered a “loaned employee” to CC & B, Underwood must be considered an “employee of the same employer” within the contemplation of OCGA § 34-9-11, so as to preclude suit against him as a third-party tortfeasor.

Section 34-9-11 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 ... at common law or otherwise, on account of such injury . . . ; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tortfeasor, other than an employee of the same employer. . . .” (Emphasis supplied.) The last phrase was added to the statute by Ga. Laws 1974, pp. 1143, 1144. The trial court, relying on Long v. Marvin M. Black Co., 250 Ga. 621 (300 SE2d 150) (1983), held that Burt and Underwood were not employees of the same employer within the contemplation of the code section. Held:

Both workers were clearly working under the direct control and supervision of the same employer at the time the injury occurred. Indeed, Underwood was Burt’s immediate supervisor on the job. We hold that, under such circumstances, the two must be considered employees of the same employer within the contemplation of OCGA § 34-9-11. Accord Jarrard v. Doyle, 164 Ga. App. 339 (297 SE2d 301) (1982). See also Bexley v. Southwire Co., 168 Ga. App. 431, 432 (1) (309 SE2d 379) (1983).

By definition, a borrowed servant is, at least temporarily, the actual employee of the “borrowing employer.” For example, the borrowing employer would presumably bear vicarious liability for the acts of the borrowed servant precisely because those acts are performed for his benefit and under his direction and supervision. A borrowed servant is, then, even though temporarily, “an employee of the same employer” of any regular employee of the borrowing employer. Borrowed servants have been held by other jurisdictions to be fellow servants of the regular employees of the borrowing employer. See Forrester v. Kuck, 579 P2d 756 (Mont. 1978); Peterick v. State of Wash., 589 P2d 250 (Wash. App. 1978); Spanja v. Thibodaux Boiler Works, 2 S2d 668 (La. App. 1941). For these reasons, we hold in the present case that Underwood was entitled to summary judgment on Burt’s claim.

The Supreme Court’s decision in Long v. Marvin M. Black Co., supra, does not compel a contrary result, since the immunity provided by OCGA § 34-9-11 was invoked in that case on the basis of the “statutory employer” theory rather than the “loaned employee” theory. In other words, the two employees involved in that case were not working under the control and supervision of the same employer when the accident occurred, but were merely working on the same construction project.

Judgment reversed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Carley, Sognier, and Pope, JJ., concur. Benham and Beasley, JJ., dissent.