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Wade v. Georgia Diversified Industries

9/24/1999

MC-095


Plaintiffs Estelle Wade and Joan W. Mannis, administrators of the estate of Jamie L. Wade, brought this tort action against defendants Georgia Diversified Industries, Inc. and Charles Ivey, to recover for the wrongful death of Ms. Wade, who died from injuries received in an automobile accident while she was a passenger in a vehicle owned and operated by defendant Charles Ivey. Defendants jointly moved for summary judgment, arguing a tort action on behalf of an employee against an employer and a co-employee was barred because workers' compensation provided plaintiffs' exclusive remedy under OCGA § 34-9-11 (a). This motion was granted and plaintiffs appeal. Held:


Because there is conflicting evidence as to whether the fatal injuries to plaintiffs' decedent Jamie L. Wade arose out of and in the course of her employment with Diversified, we reverse the grant of summary judgment.


Viewed in the light most favorable to plaintiffs as non-movants, the evidence authorizes the following facts:


Diversified admitted that Charles Ivey was its employee who was acting within the scope of his employment at the time of the incident. In fact, Mr. Ivey was president of defendant Diversified from its founding in 1980 as a non-profit corporation to his retirement in August of 1997, after this incident. Diversified operates in part under a grant from the Georgia Department of Human Resources ("DHR") and exists to provide employment opportunities for people with disabilities, such as Jamie L. Wade, by performing "packaging services to different companies." As part of Diversified's contract with DHR, Diversified received the use of two vans, titled in DHR but driven by Diversified employees. Diversified used these vans to "[pick] up the employees that needed transportation," but use of the vans was not mandatory. No Diversified employees were paid going to or from work. On an emergency basis, other vehicles were substituted to transport the employees. Ms. Wade had ridden in Mr. Ivey's truck on other occasions. Mr. Ivey has been reimbursed before for the business use of his personal vehicle, but had not submitted a claim for reimbursement for taking Ms. Wade home.


Jamie L. Wade was a Diversified employee who was paid on the basis of her production, that is, the number of packages she sealed. According to Mr. Ivey, Ms. Wade was dependent upon Diversified providing transportation to and from work unless, for some reason, her mother picked her up early. Any time she was asked to do so, Ms. Wade liked to work overtime. On the evening in question, Ms. Wade worked late, until 4:00 or 5:00 p.m., whereas her regular shift was from 7:30 to 2:30 p.m. Mr. Ivey used his personal pick-up truck to drive three employees home, including Ms. Wade. After dropping off two employees, Mr. Ivey first intended to take Ms. Wade directly home, but then changed his mind and intended to return to Diversified. At that point, Mr. Ivey was not intending to do anything for Ms. Wade; rather " he was [merely] a passenger in [Mr. Ivey's] car." In order to return to Diversified, Mr. Ivey needed to switch lanes and turn right onto Grassdale Road but as he approached the intersection, Mr. Ivey rammed into the back of a truck stopped at the red light, causing Ms. Wade's injuries.


1. The rights and remedies granted to an employee by Title 34, Chapter 9, the Workers' Compensation provisions,


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; provided, however, that no employee shall be deprived of any right to bring an actio

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