2020 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 9 - Workers' Compensation
Article 1 - General Provisions
§ 34-9-8. Liability of Principal Contractor or Subcontractor for Employee Injuries

1. A principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer.
2. Any principal, intermediate, or subcontractor who shall pay compensation under subsection (a) of this Code section may recover the amount paid from any person who, independently of this Code section, would have been liable to pay compensation to the injured employee or from any intermediate contractor.
3. Every claim for compensation under this Code section shall be in the first instance presented to and instituted against the immediate employer, but such proceedings shall not constitute a waiver of the employee's right to recover compensation under this chapter from the principal or intermediate contractor. If such immediate employer is not subject to this chapter by reason of having less than the required number of employees as prescribed in subsection (a) of Code Section 34-9-2 and Code Section 34-9-124 does not apply, then such claim may be directly presented to and instituted against the intermediate or principal contractor. However, the collection of full compensation from one employer shall bar recovery by the employee against any others, and the employee shall not collect a total compensation in excess of the amount for which any of the contractors is liable.
4. This Code section shall apply only in cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under his control or management.

(Ga. L. 1920, p. 167, § 20; Code 1933, § 114-112; Ga. L. 1969, p. 671, § 1.)

- Liability of employer for negligence of contractor generally, § 51-2-5.

- For article surveying developments in Georgia workers' compensation law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 323 (1981). For annual survey of insurance law, see 35 Mercer L. Rev. 177 (1983). For article, "New Restrictions on the Statutory Employer Rule: Workers' Compensation Benefits and Immunity Curtailed," see 21 Ga. St. B. J. 94 (1985). For article, "Worker's Compensation and the Statutory Employer," see 27 Ga. St. B. J. 24 (1990). For article, "As to Leased Employment and Workers' Compensation Liability," see 28 Ga. L. Rev. 683 (1994). For article, "Workers' Compensation," see 53 Mercer L. Rev. 521 (2001). For survey article on construction law for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 85 (2003). For annual survey of workers' compensation law, see 57 Mercer L. Rev. 419 (2005). For survey article on workers' compensation law, see 60 Mercer L. Rev. 433 (2008). For annual survey on workers' compensation, see 61 Mercer L. Rev. 399 (2009). For annual survey on local government law, see 69 Mercer L. Rev. 205 (2017). For annual survey on workers' compensation, see 65 Mercer L. Rev. 311 (2013). For note, "Workmen's Compensation: Who Is the Employer?," see 2 Mercer L. Rev. 390 (1951). For comment on Churchwell Bros. Constr. Co. v. Archie R. Briggs Constr. Co., 89 Ga. App. 550, 80 S.E.2d 212 (1954), see 16 Ga. B. J. 465 (1954).

ANALYSIS

• General Consideration
• Liability
• Illustrative Examples
• Practice and Procedure

General Consideration

Purpose of section.

- The purpose of O.C.G.A. § 34-9-8 is to ensure that employees in construction and other industries are covered by workers' compensation; in order to do so, the workers' compensation law, O.C.G.A. § 34-9-1 et seq., places an increased burden, in the form of potential liability for workers' compensation benefits, on the statutory employer, thus encouraging the statutory employer to require subcontractors to carry workers' compensation insurance. Wright Assocs. v. Rieder, 247 Ga. 496, 277 S.E.2d 41 (1981); Franks v. Avila, 200 Ga. App. 733, 409 S.E.2d 564 (1991).

- It was evidently the intention of the legislature that claims should be filed against some party; simply to set out that one has been injured and that somebody owes compensation is not sufficient. McCormick v. Kitchens, 59 Ga. App. 376, 1 S.E.2d 57 (1939).

- Under the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), the word "employer" means a principal, an intermediate, or a subcontractor. Georgia Power Co. v. Diamond, 130 Ga. App. 268, 202 S.E.2d 704 (1973).

- By O.C.G.A. § 34-9-8, the principal or intermediate contractor is made the "statutory employer" of the subcontractor's employee. Wright Assocs. v. Rieder, 247 Ga. 496, 277 S.E.2d 41 (1981).

The principal contractor is the statutory employer of the employee of a subcontractor who is an independent contractor. Haygood v. Home Transp. Co., 149 Ga. App. 229, 253 S.E.2d 805, aff'd, 244 Ga. 165, 259 S.E.2d 429 (1979); Wright Assocs. v. Rieder, 247 Ga. 496, 277 S.E.2d 41 (1981).

A contractor two levels "up the ladder", not in contractual privity with the worker's immediate employer, was the worker's statutory employer and was entitled to statutory immunity. England v. Beers Constr. Co., 224 Ga. App. 44, 479 S.E.2d 420 (1996).

Since the first subsidiary company undertook no contractual obligation to perform work on the project for another, but merely hired the contractor to perform the project work, the first subsidiary company was not a statutory employer liable for compensation to the injured employee under O.C.G.A. § 34-9-8, and had no immunity from suit under O.C.G.A. § 34-9-11. Ramcke v. Ga. Power Co., 306 Ga. App. 736, 703 S.E.2d 13 (2010), cert. denied, No. S11C0482, 2011 Ga. LEXIS 583 (Ga. 2011).

- In an action for breach of duty to manage or supervise a construction project, individual employees of a general contractor are not entitled to the immunity from liability granted to their employer as the "statutory employer". Paz v. Marvin M. Black Co., 200 Ga. App. 607, 408 S.E.2d 807, cert. denied, 200 Ga. App. 896, 408 S.E.2d 807 (1991).

- Mere contract for the sale of goods does not make a buyer, or a seller, or both, a "contractor" within the meaning of this section, but when the contract to sell was accompanied by an undertaking by either party to render substantial services in connection with the goods sold, that party was a "contractor." Evans v. Hawkins, 114 Ga. App. 120, 150 S.E.2d 324 (1966).

In order to make a party to the contract for the sale of goods a "contractor", as used in O.C.G.A. § 34-9-8, the contract to sell must be accompanied by an undertaking by either party to render substantial services in connection with the goods sold. The fact that an injured employee's employer fabricated the parts sold on the construction site does not, in and of itself, make the employer a subcontractor of the contractor. Gray Bldg. Sys. v. Trine, 260 Ga. 252, 391 S.E.2d 764 (1990).

- "Enterprise" theory whereby an "owner" who is not also a "contractor" may nevertheless be held liable for workers' compensation benefits and immune from tort liability is inconsistent with the concept of "principal contractor" in O.C.G.A. § 34-9-8. A mere owner to whom the contractual obligation of performance is owed and from whom no contractual obligation of performance is due is not a "principal contractor" under that section. Yoho v. Ringier of Am., Inc., 263 Ga. 338, 434 S.E.2d 57 (1993).

In a personal injury action brought against a public utility by an independent contractor's employee who was injured while doing work at the utility during a shutdown, the genuine issue of material fact as to whether the utility was acting as a contractor at the time the employee was injured precluded summary judgment on the grounds the utility was the employee's statutory employer. Guillman v. Georgia Power Co., 211 Ga. App. 690, 440 S.E.2d 83 (1994).

- Since secondary liability imposed under this section was predicated upon the existence of a principal contractor-subcontractor relationship, that section was not intended to cover all employers who let out work on contract, but was limited to those who contract to perform certain work, such as the furnishing of goods and services, for another, and then sublet in whole or in part such work. Evans v. Hawkins, 114 Ga. App. 120, 150 S.E.2d 324 (1966); American Mut. Liab. Ins. Co. v. Fuller, 123 Ga. App. 585, 181 S.E.2d 876 (1971).

Employer may not bypass workers' compensation laws simply by designating certain employees as independent contractors. Amtrust N. Am., Inc. v. Smith, 315 Ga. App. 133, 726 S.E.2d 628 (2012).

- Rights and remedies granted under the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) to an employee exclude all other rights and remedies of such employee, the employee's personal representative, parents, dependents, or next-of-kin, or otherwise, on account of injury, loss of service, or death, other than the employee's right to bring an action against a third-party tort-feasor. Haygood v. Home Transp. Co., 149 Ga. App. 229, 253 S.E.2d 805, aff'd, 244 Ga. 165, 259 S.E.2d 429 (1979).

- O.C.G.A. § 34-9-8 applies to contractors and not owners, unless the owner also serves as a contractor. Modlin v. Black & Decker Mfg. Co., 170 Ga. App. 477, 317 S.E.2d 255 (1984); Rickets v. Tri-State Sys., 177 Ga. App. 509, 339 S.E.2d 732 (1986).

Owners or entities merely in possession or control of the premises would not be subject to workers' compensation liability as statutory employers, except in the isolated situation when that party also serves as a contractor for yet another entity and hires another contractor to perform the work on the premises. R.E. Thomas Erectors, Inc. v. Brunswick Pulp & Paper Co., 171 Ga. App. 903, 321 S.E.2d 412 (1984).

Law does not grant tort immunity to owners, who are not contractors, even though they are in control of premises and are actively involved in the enterprise in which an employee was injured. Dye v. Trussway, Inc., 211 Ga. App. 139, 438 S.E.2d 194 (1993).

- Word "premises" as used in O.C.G.A. § 34-9-8 does not include the premises of a shipper's customer to which goods are delivered. Gramling v. Sunshine Biscuits, Inc., 162 Ga. App. 863, 292 S.E.2d 539 (1982).

- O.C.G.A. § 34-9-8 is applicable only when an injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work, or which are otherwise under the principal's control or management. Wright Assocs. v. Rieder, 247 Ga. 496, 277 S.E.2d 41 (1981).

- Trial court did not err in granting an insurer summary judgment in the insurer's action to recover premiums due under a workers' compensation insurance policy the insurer issued to an insured because the insurer submitted evidence on the number of workers on the insured's payroll, the amount of the payroll, the classifications of those workers, and the applicable rates; the insured did not come forward with any evidence to show that any of the workers listed were covered by other workers' compensation insurance, and therefore, did not show that any of the workers had been "misclassified" by the audit. Dennis Perry Homes, Inc. v. Companion Prop. & Cas. Ins. Co., 311 Ga. App. 706, 716 S.E.2d 798 (2011).

Cited in United States Fid. & Guar. Co. v. Corbett, 31 Ga. App. 7, 119 S.E. 921 (1923); Aetna Life Ins. Co. v. Palmer, 33 Ga. App. 522, 126 S.E. 862 (1925); Davis v. Menefee, 34 Ga. App. 813, 131 S.E. 527 (1926); Ocean Accident & Guarantee Corp. v. Council, 35 Ga. App. 632, 134 S.E. 331 (1926); Zurich Gen. Accident & Liab. Ins. Co. v. Lee, 36 Ga. App. 248, 136 S.E. 173 (1926); Irving v. Home Accident Ins. Co., 36 Ga. App. 551, 137 S.E. 105 (1927); Ocean Accident & Guarantee Corp. v. Wilson, 36 Ga. App. 784, 138 S.E. 246 (1927); Maryland Cas. Co. v. Radney, 37 Ga. App. 286, 139 S.E. 832 (1927); Employers Liab. Assurance Corp. v. Treadwell, 37 Ga. App. 759, 142 S.E. 182 (1928); Cooper v. Dixie Constr. Co., 45 Ga. App. 420, 165 S.E. 152 (1932); Liberty Mut. Ins. Co. v. Ragan, 191 Ga. 811, 14 S.E.2d 88 (1941); Blackshear v. Liberty Mut. Ins. Co., 69 Ga. App. 790, 26 S.E.2d 793 (1943); Blair v. Smith, 201 Ga. 747, 41 S.E.2d 133 (1947); Liberty Mut. Ins. Co. v. Fricks, 81 Ga. App. 727, 59 S.E.2d 671 (1950); Employer's Liab. Assurance Corp. v. Smith, 86 Ga. App. 230, 71 S.E.2d 289 (1952); Smith v. Maryland Cas. Co., 93 Ga. App. 222, 91 S.E.2d 188 (1956); Chevrolet Div., GMC v. Dempsey, 212 Ga. 560, 93 S.E.2d 703 (1956); Hale v. Kendrick, 95 Ga. App. 348, 98 S.E.2d 65 (1957); Mosley v. George A. Fuller Co., 250 F.2d 686 (5th Cir. 1957); Benefield v. McDonough Constr. Co., 106 Ga. App. 194, 126 S.E.2d 704 (1962); Corbitt v. McClurd, 107 Ga. App. 113, 129 S.E.2d 389 (1962); American Mut. Liab. Ins. Co. v. Rozier, 117 Ga. App. 178, 160 S.E.2d 236 (1968); Bli Constr. Co. v. Knowles, 123 Ga. App. 588, 181 S.E.2d 879 (1971); Lyons v. Employers Mut. Liab. Ins. Co., 127 Ga. App. 268, 193 S.E.2d 244 (1972); Simpkins v. Unigard Mut. Ins. Co., 130 Ga. App. 535, 203 S.E.2d 742 (1974); Greyhound Van Lines v. Collins, 132 Ga. App. 806, 209 S.E.2d 250 (1974); Nationwide Mut. Ins. Co. v. Davis, 146 Ga. App. 68, 245 S.E.2d 322 (1978); Arthur Pew Constr. Co. v. Bryan Constr. Co., 148 Ga. App. 114, 251 S.E.2d 105 (1978); Goolsby v. Wilson, 150 Ga. App. 611, 258 S.E.2d 216 (1979); Haygood v. Home Transp. Co., 244 Ga. 165, 259 S.E.2d 429 (1979); Farmer v. Ryder Truck Lines, 245 Ga. 734, 266 S.E.2d 922 (1980); Mimms v. Sisk Decorating Co., 156 Ga. App. 572, 275 S.E.2d 148 (1980); Cleckley v. Batson-Cook Co., 160 Ga. App. 831, 288 S.E.2d 573 (1982); Long v. Marvin M. Black Co., 163 Ga. App. 633, 294 S.E.2d 641 (1982); Long v. Marvin M. Black Co., 250 Ga. 621, 300 S.E.2d 150 (1983); Manning v. Georgia Power Co., 252 Ga. 404, 314 S.E.2d 432 (1984); Seckinger & Co. v. Foreman, 252 Ga. 540, 314 S.E.2d 891 (1984); Howell v. Parker, 171 Ga. App. 101, 318 S.E.2d 811 (1984); Massey v. United States, 733 F.2d 760 (11th Cir. 1984); McCorkle v. United States, 737 F.2d 957 (11th Cir. 1984); International Indem. Co. v. White, 174 Ga. App. 773, 331 S.E.2d 37 (1985); Gunn v. Sims Crane Serv., Inc., 182 Ga. App. 24, 354 S.E.2d 653 (1987); Carver v. Jasper Constr. Co., 183 Ga. App. 485, 359 S.E.2d 183 (1987); Capitol Fish Co. v. Tanner, 192 Ga. App. 251, 384 S.E.2d 394 (1989); Brown v. Advantage Eng'g, Inc., 732 F. Supp. 1163 (N.D. Ga. 1990); Murph v. Maynard Fixturecraft, Inc., 252 Ga. App. 483, 555 S.E.2d 845 (2001); C. Brown Trucking, Inc. v. Rushing, 265 Ga. App. 676, 595 S.E.2d 346 (2004).

Liability

1. In General

- In order to recover under this section, it was not necessary that the principal contractor have control, or right of control, of the time, manner, and method of performance of either the immediate employer or the claimant. American Mut. Liab. Ins. Co. v. Fuller, 123 Ga. App. 585, 181 S.E.2d 876 (1971).

Pursuant to O.C.G.A. § 34-9-8 (a), a general contractor is liable for payment of workers' compensation benefits to the employee of a subcontractor to the same extent as the subcontractor. Franks v. Avila, 200 Ga. App. 733, 409 S.E.2d 564 (1991).

- When the immediate employer was insolvent and unable to pay an award, and a return of nulla bona was entered to fi. fa. which was issued against such employer, the claimant receiving no sums to which the claimant was entitled, the intermediate contractor was liable for injuries sustained by the claimant while working on work which had been subcontracted to the immediate employer. Churchwell Bros. Constr. Co. v. Archie R. Briggs Constr. Co., 89 Ga. App. 550, 80 S.E.2d 212 (1954), for comment, see 16 Ga. B. J. 465 (1954).

- Manufacturer which had a contract with an employer to repair and replace tires on the manufacturer's equipment was merely the "owner" of the property and was not the "statutory employer" of the employee dispatched to the manufacturer's plant to change a flat tire, who was injured when the new tire exploded, and, therefore, did not have immunity from tort liability. McCrimmons v. Cornell-Young Co., 171 Ga. App. 561, 320 S.E.2d 398 (1984).

- Injured employee of a subcontractor could not recover a Workers' Compensation Board award against the general liability insurance policy of a general contractor (neither contractor having obtained workers' compensation insurance) when the policy excluded "any obligation which the insured . . . may be held liable under any workers' compensation . . . law". Williams v. Lumbermens Mut. Cas. Co., 164 Ga. App. 435, 297 S.E.2d 345 (1982).

- Payments made to an insured under uninsured motorist coverage of a liability insurance policy are not payments by one liable to pay damages to the injured party on account of the occurrence causing the injury, and thus do not come within the provision of this section giving an employer or its compensation carrier subrogation rights against one liable to pay damages on account of the injury or death of the employee. State Farm Mut. Auto. Ins. Co. v. Board of Regents, 266 Ga. 310, 174 S.E.2d 920 (1970).

- Irrespective of this section, a special, as opposed to a general, employer would be liable to a workers' compensation claimant without the claimant being required to first institute a claim against the general employer. St. Paul-Mercury Indem. Co. v. Alexander, 84 Ga. App. 207, 65 S.E.2d 694 (1951).

Employer who expressly exempted oneself from coverage under O.C.G.A. § 34-9-2.2 was barred from making a claim against the employer's own company and the employer could not claim under O.C.G.A. § 34-9-8 (a) to be an employee injured while employed by the company in its capacity as a subcontractor. Greg Fisher, Ltd. v. Samples, 238 Ga. App. 825, 520 S.E.2d 280 (1999).

2. Tort Liability

Principal contractor entitled to tort immunity.

- Employee of a subcontractor may not collect workers' compensation from a general contractor under this section, and then sue the general contractor in tort based on the same injury for which workers' compensation payments were received. Clements v. Georgia Power Co., 148 Ga. App. 745, 252 S.E.2d 635 (1979).

Collection of compensation from a statutory employer bars recovery against any others, including the "principal". Haygood v. Home Transp. Co., 149 Ga. App. 229, 253 S.E.2d 805, aff'd, 244 Ga. 165, 259 S.E.2d 429 (1979).

As a statutory employer liable to pay workers' compensation benefits under O.C.G.A. § 34-9-8, a principal contractor should receive the correlative benefit of tort immunity. Wright Assocs. v. Rieder, 247 Ga. 496, 277 S.E.2d 41 (1981).

Employee of an independent subcontractor may not recover in tort against the principal contractor. Wright Assocs. v. Rieder, 247 Ga. 496, 277 S.E.2d 41 (1981).

Under O.C.G.A. §§ 34-9-8 and34-9-11, a statutory employer is immune to any action in negligence by an employee of a subcontractor or an independent contractor who has already paid the employee workers' compensation benefits. Hensel Phelps Constr. Co. v. Johnson, 161 Ga. App. 631, 295 S.E.2d 843, rev'd on other grounds, 250 Ga. 83, 295 S.E.2d 841 (1982).

When an employee of a subcontractor who fell from a ladder at the employee's place of work recovers workers' compensation benefits from the employee's immediate employer, the subcontractor, the prime contractor as a statutory employer is not liable to pay workers' compensation benefits under O.C.G.A. § 34-9-8 and the prime contractor should receive the correlated benefit of tort immunity under O.C.G.A. § 34-9-11. Kitchens v. Winter Co. Bldrs., 161 Ga. App. 701, 289 S.E.2d 807 (1982).

Widow of the employee of a subcontractor could not bring a wrongful death action against the general contractor that was liable to pay workers' compensation benefits as the statutory employer. Warden v. Hoar Constr. Co., 269 Ga. 715, 507 S.E.2d 428 (1998).

Injured worker could not sue a statutory employer in tort after that employer successfully defeated a claim for workers' compensation benefits based upon the worker's failure to follow proper procedures. Maguire v. Dominion Dev. Corp., 241 Ga. App. 715, 527 S.E.2d 575 (1999).

General contractor was considered a statutory employer under O.C.G.A. § 34-9-8(a) and therefore immune from liability in a subcontractor's action against it seeking recovery of personal injuries sustained in a work accident; accordingly, summary judgment pursuant to O.C.G.A. § 9-11-56 was properly granted to the contractor. Reynolds v. McKenzie-Perry Homes, Inc., 261 Ga. App. 379, 582 S.E.2d 534 (2003).

In a personal injury action filed by a subcontractor's employee against the general contractor, the trial court properly concluded that the general contractor was a principal contractor that hired the subcontractor to aid it in the completion of its contract to supply wood chips to a paper company; accordingly, the general contractor was a statutory employer entitled to tort immunity in the employee's suit. Patterson v. Bristol Timber Co., 286 Ga. App. 423, 649 S.E.2d 795 (2007).

Trial court erred in ruling that an employee's tort claim against a general contractor was not barred by the exclusive-remedy provision of the Workers' Compensation Act, O.C.G.A. § 34-9-11(a), because the general contractor was potentially liable to the employee for workers' compensation benefits and, consequently, was immune from tort liability; pursuant to the Workers' Compensation Act, O.C.G.A. § 34-9-8(a), the general contractor was the employee's statutory employer at the time of the accident because the employee was hired by a subcontractor and was working on the construction project site at the time that of the injury, and the subcontractor was hired by the general contractor to perform work as a subcontractor on the construction project. Vratsinas Constr. Co. v. Chitwood, 314 Ga. App. 357, 723 S.E.2d 740 (2012).

In a wrongful death action by the widow of an employee of a subcontractor of a chicken company, who was killed by a fellow employee driving a forklift left running by another subcontractor, the chicken company was the decedent's statutory employer, and the widow's claims were barred by exclusivity under the Workers' Compensation Act, specifically O.C.G.A. §§ 34-9-8 and34-9-11(a). Mullinax v. Pilgrim's Pride Corp., 354 Ga. App. 186, 840 S.E.2d 666 (2020).

- Regardless of fact that the decedent's employer was an independent contractor and death occurred in performance of an independent contract, evidence established that the defendant was both a principal contractor and the decedent's statutory employer under O.C.G.A. § 34-9-8. Thus, the defendant was entitled to tort immunity pursuant to O.C.G.A. § 34-9-11. International Leadburning Co. v. Forrister, 213 Ga. App. 558, 445 S.E.2d 546 (1994).

- Only an entity who is secondarily liable for workers' compensation benefits under O.C.G.A. § 34-9-8 (a) is consequently entitled to tort immunity under O.C.G.A. § 34-9-11. Yoho v. Ringier of Am., Inc., 263 Ga. 338, 434 S.E.2d 57 (1993); Southern Ry. v. Hand, 216 Ga. App. 370, 454 S.E.2d 217 (1995).

- Owner who is merely in possession or control of the premises would not be subject to workers' compensation liability as a statutory employer and would not be immune from tort liability. Yoho v. Ringier of Am., Inc., 263 Ga. 338, 434 S.E.2d 57 (1993).

- When a statutory employer enjoyed tort immunity at the time it contributed to a tort settlement, its payment constituted a voluntary payment, and the employer was not entitled to credit for funds it contributed to the settlement. Travelers Ins. Co. v. McNabb, 201 Ga. App. 297, 410 S.E.2d 788, cert. denied, 201 Ga. App. 904, 410 S.E.2d 788 (1991), overruled on other grounds, Yoho v. Ringier of Am., Inc., 263 Ga. 338, 434 S.E.2d 57 (1993).

General contractor and subcontractors, all of whom owed a contractual obligation of performance, were statutory employers potentially liable for workers' compensation benefits and immune from tort liability. Redd v. Stanfield, 217 Ga. App. 573, 458 S.E.2d 394 (1995).

- Subcontractor does not enjoy tort immunity from suit by the injured employee of a different independent subcontractor. Cleveland Elec. Constructors, Inc. v. Craven, 167 Ga. App. 274, 306 S.E.2d 364 (1983).

- Once a contractor has been determined to be a statutory employer, such an employer cannot be a joint tortfeasor subject to contribution. Modlin v. Swift Textiles, Inc., 180 Ga. App. 726, 350 S.E.2d 273 (1986).

- Quid pro quo for the statutory employer's potential liability is immunity from tort liability, and the fact that the statutory employer has a right to indemnification, statutory or contractual, does not strip the employer of tort immunity. Wright Assocs. v. Rieder, 247 Ga. 496, 277 S.E.2d 41 (1981).

- O.C.G.A. § 9-11-8(c) does not require that the statutory employer's defense of O.C.G.A. §§ 34-9-8 and34-9-11 be affirmatively raised in the defendant's answer. Wright Assocs. v. Rieder, 247 Ga. 496, 277 S.E.2d 41 (1981).

- Products liability claim pursuant to O.C.G.A. § 51-1-11, against a general contractor in its capacity as designer and manufacturer of a new paper-making process, as opposed to its capacity as statutory employer, is not an action against a "third-party tort-feasor" which avoids the immunity provided under O.C.G.A. § 34-9-11. Porter v. Beloit Corp., 194 Ga. App. 591, 391 S.E.2d 430 (1990).

Illustrative Examples

Owner of premises not "contractor."

- Since an owner of premises on which a temporary worker assigned to the owner was injured in an on-the-job accident did not owe any contractual duty of performance to another, the owner was not a "contractor" secondarily liable for workers' compensation benefits, and thus was not entitled to tort immunity. Dye v. Trussway, Inc., 211 Ga. App. 139, 438 S.E.2d 194 (1993).

"Owner" does not attain "contractor" status under O.C.G.A. § 34-9-8 by its active involvement in the enterprise, but only in the isolated situation when it also serves as a contractor for yet another entity and hires another contractor to perform the work on the premises. Southern Ry. v. Hand, 216 Ga. App. 370, 454 S.E.2d 217 (1995).

- Even though a construction company was the owner of land on which the company was building a home, the company was also acting as a general contractor for its customer, because it was building the home to the customer's specifications. Thus, under O.C.G.A. § 34-9-8, the company was the statutory employer of a subcontractor's employee and was immune from tort liability to the employee under O.C.G.A. § 34-9-11, the exclusivity provision of the Georgia Workers' Compensation Act. Creeden v. Fuentes, 296 Ga. App. 96, 673 S.E.2d 611 (2009).

Because a hotel owner was not a "principal contractor" within the meaning of O.C.G.A. § 34-9-8, an employee of a subcontractor who was injured while doing work at the hotel was not barred under O.C.G.A. §§ 34-9-8(a) and34-9-11(a) from maintaining a tort action against the owner. PHF II Buckhead LLC v. Dinku, 315 Ga. App. 76, 726 S.E.2d 569 (2012), cert. denied, No. S12C1257, 2012 Ga. LEXIS 1041 (Ga. 2012).

- Administrative law judge erred in finding that a workers' compensation claimant, who was a partner of a partnership hired by an intermediate contractor as a subcontractor, was a statutory employee of an intermediate contractor under O.C.G.A. § 34-9-8(a) as the claimant was a principal, rather than an employee, of the subcontractor partnership. Atlas Constr. Co. v. Pena, 268 Ga. App. 566, 602 S.E.2d 151 (2004).

- General contractor was not the statutory employer of a subcontractor's employee who was injured at the subcontractor's shop and not the actual project site. Beers Constr. Co. v. Doyle, 230 Ga. App. 593, 496 S.E.2d 921 (1998).

- When the defendant contracted to furnish pulpwood to a company, and employed the claimant's immediate employer to cut pulpwood from a tract of land owned by the defendant and to deliver such pulpwood to the company's plant, the evidence authorized a finding that the defendant was a principal contractor and the claimant's employer, the subcontractor, within the meaning of this section. Evans v. Hawkins, 114 Ga. App. 120, 150 S.E.2d 324 (1966).

- At the time of the plaintiff's injuries, allegedly due to the negligence of employees loaned to the plaintiff's employer, the loaned employees were under the exclusive control and direction of the plaintiff's employer; therefore, the lending employer was entitled to tort immunity. Berry v. Davis Feed & Seed, Inc., 237 Ga. App. 768, 516 S.E.2d 812 (1999).

- Sole proprietor of a business which operated as a subcontractor could not be considered an "employee" of the subcontractor because there was no evidence that the proprietor notified the proprietor's agent or insurer of the election to be treated as an employee under the workers' compensation coverage on the business. Sherwin-Williams Co. v. Escuadra, 224 Ga. App. 894, 482 S.E.2d 505 (1997).

In an action for injuries against a principal contractor, because the plaintiff was not a subcontractor of the defendant, the contractor's election to protect oneself under O.C.G.A. § 34-9-2.2 would not be treated as a forfeiture of the contractor's common law rights when O.C.G.A. § 34-9-11(a) does not mandate such loss of the right to sue a third party tortfeasor and when O.C.G.A. § 34-9-8 affords the plaintiff no benefits or protection. Kaplan v. Pulte Home Corp., 245 Ga. App. 286, 537 S.E.2d 727 (2000).

- Principal contractor (supply company) had the use and control of the highways for the purpose of the contract and, to the extent necessary for the performance of a hauling contract, the highways were "premises" on which the principal contractor had undertaken to execute work. American Mut. Liab. Ins. Co. v. Fuller, 123 Ga. App. 585, 181 S.E.2d 876 (1971).

- A city which subcontracted the construction of a sewage system met the definition of a "principal contractor" under this section, and was therefore liable for compensation to any employee injured in the employ of the subcontractor. Aetna Cas. & Sur. Co. v. Barber, 128 Ga. App. 894, 198 S.E.2d 352 (1973).

- When a power company, through its project superintendent, had the right to control the time, manner, and method of executing work, a contract between a power company and a contractor created a master-servant relationship, and the employee of such contractor, which was itself a servant of the power company, was, under the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), an employee of the power company, whose exclusive remedy was before the state board of workers' compensation. Blackwell v. Taylor, 497 F. Supp. 351 (M.D. Ga. 1980).

- When the appellant entered into a contract with the appellee's employer, permitting the latter to place its vending machines on the appellant's premises and stock them with food snacks and similar items, this contract was not a part of the business in which the appellant was engaged; thus, the appellee's employer was not a "subcontractor" of any essential part of that enterprise, and the appellant was not a statutory employer of the appellee in its business activity, and consequently was not insulated from tort suit by the fact that the appellee received compensation from the employer. Western Elec. Co. v. Capes, 164 Ga. App. 353, 296 S.E.2d 381 (1982), cert. vacated, 250 Ga. 890, 302 S.E.2d 108 (1983).

- Because the workers' compensation exclusion for owner-operators was clearly stated in O.C.G.A. § 34-9-1(2), with no mention of the employees of such owner-operators, the employee of the owner-operator could recover benefits from the statutory employer. C. Brown Trucking, Inc. v. Rushing, 265 Ga. App. 676, 595 S.E.2d 346 (2004).

- The relationship between shipper and carrier did not afford the shipper the status of statutory employer for the purposes of tort immunity from action by the carrier's employee for injury sustained while unloading a trailer upon delivery to the shipper's customer. Gramling v. Sunshine Biscuits, Inc., 162 Ga. App. 863, 292 S.E.2d 539 (1982).

- State board of workers' compensation did not err in ruling that the motor common carrier was the employee's statutory employer because common carriers were not explicitly exempted from providing coverage to leased-operators. C. Brown Trucking, Inc. v. Rushing, 265 Ga. App. 676, 595 S.E.2d 346 (2004).

- A statutory employer under O.C.G.A. § 34-9-8 is by law subject to the Workers' Compensation Act, O.C.G.A. § 34-9-1 et seq., and is required by law to comply with its requirements and the number of employees engaged by a statutory employer need not be affirmatively shown in order for such employer to take advantage of tort immunity offered by Act. Hensel Phelps Constr. Co. v. Johnson, 161 Ga. App. 631, 295 S.E.2d 843, (on motion for rehearing), rev'd on other grounds, 250 Ga. 83, 295 S.E.2d 841 (1982).

- When a subcontractor company is under contract with a principal company to furnish labor and materials for the installation of gas mains, and the principal is in the business of supplying natural gas, the principal is a statutory employer. Williams v. Atlanta Gas Light Co., 168 Ga. App. 208, 308 S.E.2d 553 (1983).

- Cement plant operator was statutory employer of self-employed mechanic who was called to correct an obstruction in a cement silo where operator supervised the project and mechanic was injured while rendering substantial service in connection with operator's manufacturing equipment. Fowler-Flemister Concrete, Inc. v. Sumner, 209 Ga. App. 312, 433 S.E.2d 329 (1993).

- Power company that had the responsibility of contracting for the performance of maintenance work at a plant was the statutory employer of an employee of the maintenance subcontractor and, thus, was entitled to immunity from the employee's tort claims. Holton v. Georgia Power Co., 228 Ga. App. 135, 491 S.E.2d 207 (1997).

- Two companies were not statutory employers under O.C.G.A. § 34-9-8 of a truck driver who was injured while hauling lumber to a customer's mill; the companies, one of which sold the wood to the customer and the other of which cut the wood and had hired the trucking company to haul it, did not have control over the customer's premises. Axson Timber Co. v. Wilson, 286 Ga. App. 482, 649 S.E.2d 609 (2007), cert. denied, 2008 Ga. LEXIS 115 (Ga. 2008).

- To sustain a workers' compensation award entered against a principal contractor in favor of an employee of a subcontractor as permitted by O.C.G.A. § 34-9-8, the principal contractor must have the minimal number of employees required under O.C.G.A. § 34-9-2. Bradshaw v. Glass, 252 Ga. 429, 314 S.E.2d 233 (1984); G & M Quality Bldrs., Inc. v. Dennison, 173 Ga. App. 578, 327 S.E.2d 773 (1985); Smith v. Cornette, 173 Ga. App. 577, 327 S.E.2d 774 (1985).

- Although the county owned the gymnasium where the claimant was injured, because the county did not have control over the contractor's construction project or the management of the contractor's employees, and because the county discussed some of the details of the project under the initial contract, including payment and supplies, but then the county stepped back and the contractor undertook to execute the contract, the county had no direct control over the contractor's employees, and the superior court did not err in affirming the determination that the county was not a statutory employer under the Workers' Compensation Act, O.C.G.A. § 34-9-1 et seq. Wills v. Clay County, 339 Ga. App. 79, 793 S.E.2d 432 (2016).

Practice and Procedure

Claim against immediate employer prerequisite to recovery.

- Whatever the evidence as to the existence of the relationship of master and servant, when a provision that every claim for compensation under this section shall be in the first instance presented to and instituted against the immediate employer, has not been complied with, no recovery can be had against a principal employer who is not the immediate employer. Zurich Gen. Accident & Liab. Ins. Co. v. Lee, 36 Ga. App. 248, 136 S.E. 173 (1926).

- The language of O.C.G.A. § 34-9-8 (c) does not require the institution of a formal claim against the immediate employer before the general contractor is entitled to recover under O.C.G.A. § 34-9-8 (b). Travelers Ins. Co. v. Southern Elec., Inc., 209 Ga. App. 718, 434 S.E.2d 507 (1993).

- It is the claimant's duty to file a claim against the one whom the claimant contends is the claimant's employer, and it is not the duty of the board to make a special investigation, before a hearing, to ascertain who the proper parties are. McCormick v. Kitchens, 59 Ga. App. 376, 1 S.E.2d 57 (1939).

- The failure to grant a hearing on a statutory employer's motion to dismiss it from the case was an obvious violation of the claimant's right of due process, when the claimant timely instituted a claim against the immediate employer, as required by O.C.G.A. § 34-9-8 (c), and thus, also preserved the claimant's right to recover compensation against a statutory employer. Scott v. Tremco, Inc., 199 Ga. App. 606, 405 S.E.2d 347 (1991), cert. denied, 199 Ga. App. 907, 405 S.E.2d 347 (1991).

- Under the "owner plus" or "circumstances of the case" test, the issue of whether an entity is a statutory employer under Georgia law is a mixed question of law and fact. Fennell v. Max Rittenbaum, Inc., 199 Ga. App. 619, 405 S.E.2d 546 (1991), cert. denied, 199 Ga. App. 906, 405 S.E.2d 546 (1991), overruled on other grounds, Yoho v. Ringier of Am., Inc., 263 Ga. 338, 434 S.E.2d 57 (1993).

- A claim of statutory immunity under Georgia's workers' compensation scheme is an affirmative defense and subject to waiver under Rule 8(c), Fed. R. Civ. P., in federal diversity of citizenship actions. Troxler v. Owens-Illinois, Inc., 717 F.2d 530 (11th Cir. 1983).

- When a defendant is not a principal contractor as required by O.C.G.A. § 34-9-8, the statutory employer defense is no longer available to it; and the injured plaintiff can still pursue the plaintiff's common-law remedies against the defendant as a third-party tort-feasor. Dross v. Southern Airways, Inc., 170 Ga. App. 481, 317 S.E.2d 300 (1984).

- When an issue as to whether a contractor had a secondary liability under workers' compensation because of the insolvency of the immediate employer of an injured employee was not raised in prior litigation, the fact that the appellate court in that case reversed the award against the contractor, which award had been entered upon an erroneous theory that it was primarily liable as the initial employer, was not such an adjudication of nonliability as would relieve such contractor in any event, and did not constitute a defense against the present award entered against it as a subcontractor or intermediate contractor for its own subcontractor's unpaid liability. Churchwell Bros. Constr. Co. v. Archie R. Briggs Constr. Co., 89 Ga. App. 550, 80 S.E.2d 212 (1954), for comment, see 16 Ga. B. J. 465 (1954).

OPINIONS OF THE ATTORNEY GENERAL

Ultimate responsibility for payment of medical services for work release inmate.

- A private employer is primarily responsible for the payment of medical bills arising from injuries, fatal or otherwise, received by a work release inmate while on the job, but, upon a default by the employer, the Department of Offender Rehabilitation is ultimately responsible for paying for those medical services. 1981 Op. Att'y Gen. No. 81-27.

RESEARCH REFERENCES

Am. Jur. 2d.

- 82 Am. Jur. 2d, Workers' Compensation, § 194 et seq.

- 100 C.J.S., Workers' Compensation, § 870 et seq.

- Circumstances under which the existence of the relationship of employer and independent contractor is predictable, 19 A.L.R. 1168.

Elements bearing directly upon the quality of a contract as affecting the character of one as independent contractor, 20 A.L.R. 684.

Independent contractor: remedial rights in respect of injuries caused by breaches of positive duties correlative to corporate franchises, 28 A.L.R. 122.

Workmen's compensation: injury to employee temporarily leaving car or vehicle of employer for reasons personal to himself, 32 A.L.R. 806.

Truckman as independent contractor under Workmen's Compensation Act, 43 A.L.R. 1312; 120 A.L.R. 1031.

Construction and effect of specific provisions of Workmen's Compensation Acts in relation to employees of independent contractors or subcontractors, 58 A.L.R. 872; 150 A.L.R. 1214; 151 A.L.R. 1359; 166 A.L.R. 813.

Nurse as independent contractor or servant, 60 A.L.R. 303.

Independent contractors and Workmen's Compensation Acts, 78 A.L.R. 493.

Use by employee of his own motor vehicle as affecting question whether injury or death was within Workmen's Compensation Acts, 95 A.L.R. 467.

Construction and effect of specific provisions of Workmen's Compensation Acts in relation to employees of independent contractors or subcontractors, 105 A.L.R. 580.

Teamster or truckman as independent contractor or employee under Workmen's Compensation Acts, 120 A.L.R. 1031.

Workmen's Compensation Act as exclusive of remedy by action against employer for injury or disease not compensable under act, 121 A.L.R. 1143.

Tests of independent contractor relationship in the field of Workmen's Compensation and Social Security Acts, 134 A.L.R. 1029; 147 A.L.R. 828.

Insurance soliciting agent as employee or independent contractor within Workmen's Compensation Acts, 138 A.L.R. 1122.

Injury to employee in course of employment but away from employer's place of business, due to a cause or risk to which others are also subject, as arising out of the employment, within Workmen's Compensation Act, 139 A.L.R. 1472.

Workmen's Compensation Act as applicable to employee of concessionaire in department store, 142 A.L.R. 1400.

Liability of insurance carrier under Workmen's Compensation Act in respect of personal injury to or death of employee where because of relationship between employee and employer recovery would inure in whole or in part to employer, 147 A.L.R. 115.

Test of independent contractor relationship in the field of workmen's compensation and social security, including unemployment compensation acts, 147 A.L.R. 828.

Transfer of business as affecting common-law remedy or workmen's compensation in respect of injuries subsequently sustained by employee, 150 A.L.R. 1166.

What work of independent contractor or subcontractor is so related to the trade, business, or occupation of principal employer as to satisfy the condition in that regard of provisions of Workmen's Compensation or Unemployment Compensation Acts, which make the employer responsible to, or in respect of, employees of the contractor, 150 A.L.R. 1214.

Workmen's compensation insurance premiums as within coverage of contractor's bond, 164 A.L.R. 1468.

Common-law remedy against general employer by employee of independent contractor or against [principal] contractor by employee of subcontractor, as affected by specific provisions of Workmen's Compensation Act relating to employees of such persons, 166 A.L.R. 813.

Workmen's compensation: remedy as between subcontractor and principal contractor (or independent contractor and contractee) in respect of compensated injury to employee of one due to negligence of other, where injured employee had no remedy apart from the act, 166 A.L.R. 1221.

Workmen's compensation: coverage of industrial or business employee when performing, under orders, services for private benefit of employer or superior, or officer, representative, or stockholder of corporate employer, 172 A.L.R. 378.

Workmen's compensation: injury while crossing or walking along railroad or street railway tracks, going to or from work, as arising out of and in the course of employment, 50 A.L.R.2d 363.

Modern status: "Dual capacity doctrine" as basis for employee's recovery from employer in tort, 23 A.L.R.4th 1151.