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GEORGIA POWER CO. v. FRANCO REMODELING6/15/1998
The sole issue in this case is whether the workers' compensation exclusive remedy provisions of OCGA § 34-9-11 (a) bar the express indemnity provisions of the High-voltage Safety Act, OCGA § 46-3-40 (b). Based on this Court's decision in City of Dalton v. Gene Rogers Constr. Co., 223 Ga. App. 819 (479 S.E.2d 171) (1996), which concluded that "the High-voltage Safety Act [does] not create an exception to the exclusive remedy provision of the Workers' Compensation Act," id. at 820, we are constrained to affirm the superior court's grant of summary judgment to Franco Remodeling.
In July 1993, plaintiffs Salomen Santana, Juan Santillan and Hector Berrios were painting an apartment building and were
injured when a metal ladder they were using touched an overhead electric line that was owned and operated by Georgia Power Company. There was no dispute that at the time of the accident, the plaintiffs were working for Franco Remodeling ("Franco"), a subcontractor engaged in a renovation project.
In July 1994, plaintiffs sued Georgia Power and the manager of the apartment complex. Plaintiffs later amended the complaint to include allegations against the owner and owner representative of the property. Plaintiffs alleged that Georgia Power negligently installed and maintained the power cable; that Georgia Power failed to adequately insulate the line; and that Georgia Power failed to warn others of the extremely high voltage present in the line. Plaintiffs' other allegations included claims that the managers of the apartment complex had superior knowledge of the danger of the high-voltage line and were liable for their failure to warn plaintiffs.
Georgia Power answered the complaint, claiming that plaintiffs' suit was barred by OCGA § 46-3-30 et seq., because the work was being done within ten feet of a high-voltage line and no notice of the work had been given to it or to the Utilities Protection Center. Franco and Gulf Insurance Company filed a motion to intervene. They argued that Franco, through its insurer, Gulf, had paid more than $700,000 in workers' compensation benefits to the plaintiffs and that intervention was necessary to protect and enforce their subrogation lien under OCGA § 34-9-11.1 in the event that plaintiffs recovered. Georgia Power cross-claimed against Franco, claiming that under the High-voltage Safety Act, Franco was liable for plaintiffs' damages and for Georgia Power's defense costs.
Franco then filed a motion for summary judgment, arguing that because the plaintiffs' injuries indisputably arose from their employment, Georgia Power's claims were barred by the exclusivity provisions of OCGA § 34-9-11 (a). Georgia Power filed a cross-motion for partial summary judgment, arguing that there was no dispute that Franco had failed to comply with the provisions of the High-voltage Safety Act, and that there was no issue as to Franco's liability to indemnify Georgia Power against the plaintiffs' claims.
In Santana v. Ga. Power Co., 269 Ga. 127 (498 S.E.2d 521) (1998), our Supreme Court affirmed the trial court's grant of summary judgment to Georgia Power on the issue of Georgia Power's liability to the plaintiffs. Santana concluded that the trial court's grant of summary judgment to Georgia Power was proper because of the appellants' and their employer's failure to give the statutorily required notice of the
work near a high-voltage line. Accordingly, Georgia Power's cross-claim against Franco for indemnification is moot. Nevertheless, based on OCGA § 46-3-40 (b), Georgia Power also asserted a claim for defense costs and that claim is not rendered moot by the Supreme Court decision.
We conclude that the superior
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