Georgia Husband/Wife Driving Team Were Employees: Wife’s Tort Action Barred by Exclusivity
Stressing that under Georgia law, it is the right to control, not the actual exercise of that control, which determines whether the work relationship is one of employer and employee, versus principal and independent contractor, a state appellate court affirmed a trial court’s summary judgment in favor of the defendant trucking company in a personal injury action filed by a plaintiff who, along with her husband, had contracted with the company to drive one of its trucks [Estes v. G&W Carriers, LLC, 2020 Ga. App. LEXIS 129 (Mar. 6, 2020)]. That the couple received a 1099 tax form and had nothing withheld from their pay was not determinative.
Background
At the time she was injured, the plaintiff and her husband were hauling a load of carpet from Georgia to California. The husband was driving and the plaintiff was reposed in the sleeping compartment of the tractor trailer. The husband lost control of the vehicle, it rolled over onto its side, and the plaintiff was injured.
The plaintiff filed a civil action against the trucking firm, alleging that her husband’s conduct caused the collision and that his liability could be imputed to the trucking company “under the doctrine of lease liability, agency, or apparent agency.” The defendant trucking firm moved for summary judgment on two grounds: (1) that the plaintiff’s action was barred by OCGA § 34-7-21, which provides that “the employer shall not be liable to one employee for injuries arising from the negligence or misconduct of other employees about the same business”; and (2) that the action was barred by the exclusive remedy provision of the Workers’ Compensation Act [OCGA § 34-9-11(a)]. The trial court granted the defendant’s motion for summary judgment, ruling that the action was barred by OCGA § 34-7-21. It did not address the defendant’s exclusive remedy argument.
Core Issue: Employee or Independent Contractor
The court stressed that the core issue was whether the plaintiff was an employee of the defendant trucking firm or whether she was an independent contractor. Resolution of that issue required an examination as to whether the contract gave, or the employer assumed, the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract.
Right to Control
The court noted that it was undisputed that the plaintiff and her husband were under contract to drive for the defendant. The defendant had the right to terminate the plaintiff and her husband. It was responsible for assigning loads for hauling to the plaintiff and her husband and for dispatching the tractor trailer. The plaintiff and her husband were not allowed to find their own loads and had no discretion over which loads they hauled. The defendant’s drivers had two or three days off between trips, but if the regulations regarding driving hours allowed it, the drivers were assigned loads.
The defendant paid all costs of operating the tractor trailer. It was responsible for the maintenance of the tractor trailer, and it paid for the fuel and inspections of its tractor trailers and its drivers’ records. Although the plaintiff and her husband paid for “scale tickets,” the defendant reimbursed them for those charges.
The court said the undisputed evidence demonstrated the defendant’s assumption of the right to control the time, manner and method of the plaintiff’s work. Given such evidence, the fact that the defendant issued its workers Form 1099s, instead of W-2s, did not control. Nor did the fact that the defendant did not withhold taxes from their paychecks or provide insurance for its drivers. There was no question for the jury and the trial court’s grant of summary judgment was appropriate.