                              FIRST DIVISION
                              BARNES, P. J.,
                          MERCIER and BROWN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                    March 31, 2020




In the Court of Appeals of Georgia
 A19A2279. SPROWSON v. VILLALOBOS.

      BROWN, Judge.

      In this interlocutory appeal, Nelson A. Sprowson, II, contends that he was

entitled to summary judgment in his favor based upon the exclusive remedy provision

in the Workers’ Compensation Act. See OCGA § 34-9-11. Specifically, that as the

employee of a business using the services of a temporary help contracting firm, he

cannot be held liable in tort to a temporary employee, who was injured while assigned

to Sprowson’s employer. For the reasons explained below, we agree and therefore

reverse.

      “On appeal from an order granting or denying summary judgment, we conduct

a de novo review, construing the evidence and all reasonable conclusions and

inferences drawn therefrom in the light most favorable to the nonmovant.” (Citation
and punctuation omitted.) Smith v. Camarena, Ga. App. (1) (835 SE2d 712) (2019).

So viewed, the record shows that on March 1, 2013, Waste Pro USA, Inc. (“Waste

Pro USA”) entered into a contract with True Blue Enterprises, Inc. d/b/a Labor Ready

Southeast, Inc. (“Labor Ready”), under which Waste Pro USA compensated Labor

Ready for providing temporary employees to perform work under the general or

direct supervision of Waste Pro USA. On March 26, 2013, Labor Ready assigned

Rudolfo Villalobos to work for Waste Pro of South Carolina, Inc. (“Waste Pro South

Carolina”) under the “exclusive supervision” of Waste Pro South Carolina. Villalobos

was injured while working as a crew member on a sanitation truck owned by Waste

Pro USA and driven by Sprowson, an employee of Waste Pro South Carolina.

According to Villalobos’ complaint, Sprowson negligently drove the truck in a

manner that pinned him against a tree adjacent to the roadway. It is undisputed that

Villalobos subsequently received workers’ compensation benefits from Labor Ready

for the injuries he sustained.

      Villalobos filed a tort action against Waste Pro USA, Waste Pro South

Carolina, Waste Pro of Georgia, Inc., and Sprowson. All of the defendants

subsequently moved for summary judgment asserting that Villalobos’ claims were

barred by the exclusive remedy of the Workers’ Compensation Act with regard to

                                         2
Waste Pro USA, Waste Pro South Carolina, and Sprowson. Waste Pro of Georgia,

Inc. asserted that it neither employed Sprowson nor owned or operated the truck

driven by Sprowson. A State Court of Fulton County judge concluded “that OCGA

§ 34-9-11 does not bar Plaintiff from bringing a tort claim against Defendant Nelson

A. Sprowson. However, OCGA § 34-9-11 does provide the exclusive remedy to the

remaining Defendants.”

      Following the grant of summary judgment to the corporate defendants, the case

was transferred to the State Court of Bryan County, where Sprowson resides.

Sprowson attempted once more to obtain summary judgment in his favor in the new

venue. Although the trial court denied his repeated attempts to obtain summary

judgment in his favor, it granted him a certificate of immediate review, and this Court

granted his application for an interlocutory appeal.

      Sprowson contends that he is entitled to the benefit of the workers’

compensation bar to tort liability pursuant to OCGA § 34-9-11 (a), which provides,

in pertinent part:

      The rights and the remedies granted to an employee by this chapter shall
      exclude and be in place of all other rights and remedies of such
      employee . . . and all other civil liabilities whatsoever at common law or
      otherwise, on account of such injury, loss of service, or death . . . No

                                          3
      employee shall be deprived of any right to bring an action against any
      third-party tort-feasor, other than an employee of the same employer or
      any person who, pursuant to a contract or agreement with an employer,
      provides workers’ compensation benefits to an injured employee,
      notwithstanding the fact that no common-law master-servant
      relationship or contract of employment exists between the injured
      employee and the person providing the benefits. . . .


(Emphasis supplied.) Id. Sprowson correctly asserts that if he is considered “an

employee of the same employer” as Villalobos, he cannot be held liable in tort. See

Underwood v. Burt, 185 Ga. App. 381 (364 SE2d 100) (1987).

      In Underwood, this Court concluded that “[a] borrowed servant is, then, even

though temporarily, ‘an employee of the same employer’ of any regular employee of

the borrowing employer.” Id. at 382 (applying borrowed servant analysis to determine

application of OCGA § 34-9-11 (a)). In order for an employee to be a borrowed

servant, “[t]he evidence must show that (1) the special master had complete control

and direction of the servant for the occasion; (2) the general master had no such

control; and (3) the special master had the exclusive right to discharge the servant.”

(Citation and punctuation omitted.) Stephens v. Oates, 189 Ga. App. 6, 7 (1) (374

SE2d 821) (1988). “All three prongs of the test must focus on the occasion when the

injury occurred rather than the work relationship in general.” (Citation and

                                          4
punctuation omitted.) Preston v. Ga. Power Co., 227 Ga. App. 449, 451 (1) (489

SE2D 573) (1997). With regard to the third prong of the test, the Supreme Court of

Georgia has equated a special master’s ability to “unilaterally discharge” a temporary

employee with “the exclusive right to discharge” a servant. Six Flags Over Ga. v.

Hill, 247 Ga. 375, 378 (1) (276 SE2d 572) (1981). See also Garden City v. Herrera,

329 Ga. App. 756, 760-762 (1) (766 SE2d 150) (2014); Preston, 227 Ga. App. at 452

(1).

       In this case, Sprowson points to a contract between Labor Ready and Waste

Pro USA, as well as deposition testimony and affidavits, to show that all three prongs

of the borrowed servant test have been met as a matter of law. The contract provides,

that Labor Ready “will be solely responsible for selecting, hiring, disciplining,

reviewing, evaluating and terminating its employees performing Services

hereunder[,]” and that Waste Pro USA

       understands that [Labor Ready] will not be providing supervision for its
       temporary employee(s) under the Agreement and that [Waste Pro USA]
       shall be responsible for adequately and reasonably supervising and
       directing the activities of [Labor Ready]’s temporary employees. . . .
       [Waste Pro USA] agrees to provide site specific safety orientation and
       training to all [Labor Ready] temporary employee(s) prior to the start of
       work.

                                          5
The contract further provides:

      Although the right to hire, discharge or designate the classification of
      employees in accordance with its best judgment is reserved to [Labor
      Ready], [Labor Ready] shall nevertheless take responsible care in the
      selection of its work force, vendors and subcontractors, and procedures
      so as to maximize productivity, and to avoid slow-downs, work
      stoppages or other disruptive or concerted action of labor. . . .


      [Labor Ready] shall not assign to and shall remove from the
      performance of the Services any employee, person or party who in its
      opinion or in the opinion of [Waste Pro USA] fails to meet reasonable
      standards of experience, competency or comportment, or who by virtue
      of their behavior are or become a detriment to acceptable successful
      performance of the Services. [Labor Ready] shall ensure such person or
      party remains uninvolved with the Services. (Emphasis supplied.)


Villalobos testified in his deposition that “when [he was] working for Labor Ready,

[he] underst[oo]d that if the company [he] was working for didn’t like the work [he

was] doing they could send [him] away” and that he was required to do whatever the

driver, Sprowson, told him to do on the job. A Labor Ready vice president averred

in an affidavit that Labor Ready assigned Villalobos to work for Waste Pro South

Carolina under Waste Pro South Carolina’s “exclusive supervision.” This undisputed

evidence shows that all three prongs of the borrowed servant test are met and that


                                          6
Sprowson was “an employee of the same employer” as Villalobos under OCGA § 34-

9-11 (a). Accordingly, he cannot be held liable in tort. See Underwood, 185 Ga. App.

AT 382.

      We find no merit in Villalobos’ argument that a contrary result is required by

the Supreme Court of Georgia’s opinion in Long v. Marvin M. Black Co., 250 Ga. 621

(300 SE2d 150) (1983). In Long, the Supreme Court of Georgia concluded that the

immunity provided to an “employee of the same employer” does not apply when “the

injured employee is an employee of a subcontractor which paid compensation and the

alleged tortfeasor is an employee of the principal contractor.” Id. at 623. The fact that

the principal contractor was also the statutory employer1 of the injured employee did

not make the injured employee and the tortfeasor employed by the statutory employer

“employees of the ‘same employer’ within the meaning of OCGA § 34-9-11 [a].” Id.

In so holding, it noted that the General Assembly used the words ‘the same

      1
           “[T]he statutory employer doctrine permits liability for workers’
compensation benefits to attach vicariously against someone other than an injured
employee’s employer. In return, the vicariously liable party is immune from tort
liability for the injury suffered. [Cits.]” Manning v. Georgia Power Co., 252 Ga. 404,
405 (314 SE2d 432) (1984). OCGA § 34-9-8 establishes that “[a] principal,
intermediate, or subcontractor” can be held liable for worker’s compensation benefits
as a statutory employer of “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.” Id.

                                           7
employer,’ not the words ‘the immediate, intermediate or principal employer.’” Id.

The Supreme Court did not address the application of the borrowed servant doctrine

to determine whether the tortfeasor was the “employee of the same employer,” as the

facts before it clearly did not warrant application of the borrowed servant doctrine.

Its holding can therefore be distinguished on this ground. See Underwood, supra, 185

Ga. App. at 382 (distinguishing Long in case applying borrowed servant doctrine

because “the two employees involved in [Long] 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”).

      Likewise, Villalobos’ argument based upon a 1995 statutory change does not

persuade us to conclude otherwise. As we have previously explained,

      Georgia law provides that the exclusive remedy provision of OCGA §
      34-9-11 prevents an injured employee or his/her dependents from
      bringing a tort claim against the employer, a statutory employer, or a
      co-employee. In 1995, the legislature extended this tort immunity to
      “businesses using the services of a temporary help contracting firm or
      an employee leasing company” provided that workers’ compensation
      benefits are furnished by either: (1) a temporary help contracting firm or
      an employee leasing company; or (2) a business using the services of
      either such firm or company.



                                          8
(Footnotes omitted.) Sabellona v. Albert Painting, Inc., 303 Ga. App. 842, 843 (1)

(695 SE2d 307) (2010). The Legislature also provided that “[a] temporary help

contracting firm or an employee leasing company shall be deemed to be a statutory

employer for the purposes of this chapter.” OCGA § 34-9-11 (c). In Villalobos’ view,

if Sprowson’s employer can now be considered Villalobos’ statutory employer under

OCGA § 34-9-11 (c), we cannot conclude that they are employees of the same

employer and must apply the rationale of Long, supra. Villalobos points out that in

Underwood, supra, we distinguished Long, in part, based upon the statement that

immunity in Long was invoked “on the basis of the ‘statutory employer’ theory rather

than the ‘loaned employee’ theory.” Underwood, 185 Ga. App. at 382. We disagree

with Villalobos’ contention that because Waste Pro South Carolina can be considered

his statutory employer, as well as Sprowson’s direct employer, we should stop our

analysis there, apply Long, and not determine whether he and Sprowson were

employees of the same employer under the borrowed servant analysis. In Long, the

only possible way for the tortfeasor and the injured party to be considered employees

of the same employer was through the statutory employer analysis. Here, the

borrowed servant doctrine provides an additional and alternative path for Sprowson



                                         9
and Villalobos to be considered employees of the same employer and nothing in the

legislative scheme or our case law precludes application of an alternative analysis.

      Finally, the Supreme Court of Georgia’s decision in Pardue v. Ruiz, 263 Ga.

146 (429 SE2d 912) (1993), is not implicated here. In that case, the Supreme Court

of Georgia addressed whether a former general rule2 that an injured employee could

not hold a managerial employee of his direct employer liable in tort should be applied

in a different context: Should managerial employees be entitled to immunity from suit

when their direct employer is the statutory employer of the injured employee? Id. at

147. The rationale for the former rule was that a manager was acting in the place of

his employer. Id. When determining whether a managerial employee should be

considered a fellow employee, subject to tort liability, or the alter ego of the

employer, immune from tort liability, this Court concluded in various decisions that

the manager could be held liable in tort when he or she “committed active, direct,

individual action directed toward the employee.” (Citations and punctuation omitted.)

See id. at 147-148. In Pardue, the Supreme Court of Georgia looked at this former

rule and concluded that it was “persuasive in determining if the supervising employee

      2
       Before April 1, 1974, employees could file tort claims against fellow
employees. Ga. L. 1974, pp. 1143, 1156, § 12; Pardue, 263 Ga. at 147, n.1;
Cunningham v. Heard, 134 Ga. App. 276, 277 (214 SE2d 190) (1985).

                                         10
should be treated as the statutory employer.” Id. at 147, n.1. Accordingly, it

concluded in the case before it that the vice president and safety officer of a general

contractor should be considered the statutory employer of the injured employees of

a subcontractor and share in his employer’s immunity from suit. Id. at 148. It also

stated: “This immunity would not, however, extend to the supervisor when he

commits an affirmative act causing or increasing the risk of injury to another

employee.” Id. It is this last statement upon which Villalobos relies in this case. In his

view, Sprowson cannot share in Waste Pro South Carolina’s immunity from suit as

a statutory employer, because Sprowson was a supervisor who committed an

affirmative act that caused or increased his risk of injury. But this argument once

again overlooks that the borrowed servant doctrine provides an alternative basis for

Sprowson’s immunity from tort liability. Sprowson’s immunity is not dependent upon

whether he should be considered the alter ego of a statutory employer. Pardue is

therefore distinguishable because it addressed the sole path for the vice president of

a general contractor to be found immune from tort liability.

      Based upon the particular facts and circumstances of this case and the analysis

outlined above, we conclude that the trial court erred by denying Sprowson’s motion

for summary judgment in his favor.

                                           11
Judgment reversed. Barnes, P. J., and Mercier, J., concur.




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