                           FIFTH DIVISION
                          MCFADDEN, C. J.,
      MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

                   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 6, 2020




In the Court of Appeals of Georgia
 A19A2385. ESTES v. G&W CARRIERS, LLC et al.
 A19A2386. G&W CARRIERS, LLC v. ESTES.

      MCFADDEN, Chief Judge.

      Heather Estes appeals from the order granting summary judgment to G&W

Carriers, LLC in her personal injury action. Estes argues that whether she was an

independent contractor or G&W’s employee — and thus barred from suing G&W —

is a jury issue. We hold that there is no material question of fact that Estes is an

employee. So her lawsuit against G&W is barred by the exclusive remedy provision

of the Workers’ Compensation Act and we affirm the grant of summary judgment to

G&W. We dismiss as moot G&W’s cross-appeal.

      1. Background.
      “On appeal from a grant of summary judgment, we review legal questions de

novo and review the evidence in the light most favorable to the nonmoving party to

determine whether there is a genuine issue of material fact.” Milliken & Co. v. Ga.

Power Co., 306 Ga. 6, 8 (1) (829 SE2d 111) (2019). So viewed, the record shows that

Estes and her husband were tractor trailer drivers who worked as a team. G&W hired

them after they completed employment applications. Estes and her husband rotated

driving responsibilities on their trips.

      When Estes was injured, she and her husband were hauling a load of carpet

from Georgia to California. The husband was driving and Estes was in the sleeping

compartment of the tractor trailer. The husband lost control of the vehicle, it rolled

over onto its side, and Estes was injured.

      Estes filed this action against G&W alleging that her husband’s conduct caused

the collision and that his liability could be imputed to G&W “under the doctrine of

lease liability, agency, or apparent agency.” G&W moved for summary judgment on

two grounds: (1) that Estes’ 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

Estes’ action was barred by the exclusive remedy provision of the Workers’

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Compensation Act. OCGA § 34-9-11 (a). The trial court granted G&W’s motion for

summary judgment, ruling that the action was barred by OCGA § 34-7-21. It did not

address G&W’s exclusive remedy argument. In A19A2385, Estes appeals the grant

of summary judgment to G&W. In A19A2386, G&W cross-appeals the trial court’s

failure to address its exclusive remedy argument.

      2. Estes was an employee and the exclusive remedy provision of the Workers’

Compensation Act bars her personal injury action.

      Because G&W argued to the trial court that it was entitled to summary

judgment on the ground that the exclusive remedy provision barred Estes’ action, we

may affirm on that ground under the right for any reason rule even though it was not

a basis for the trial court’s ruling. See City of Gainesville v. Dodd, 275 Ga. 834, 835

(573 SE2d 369) (2002) (“Under the ‘right for any reason’ rule, an appellate court will

affirm a judgment if it is correct for any reason, even if that reason is different than

the reason upon which the trial court relied.”). And we do so.

      The parties dispute whether Estes was an employee or an independent

contractor. The issue is dispositive of this case because “an injured employee’s sole

and exclusive remedy is under the Workers’ Compensation Act where the injury

arises out of and in the scope of employment. OCGA § 34-9-11 (a).” Champion v.

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Pilgrim’s Pride Corp. of Delaware, 286 Ga. App. 334, 338 (c) (649 SE2d 329)

(2007). And there is no material issue of fact that Estes’ injuries arose out of and in

the course of her employment. See Smith v. Camarena, 352 Ga. App. 797, 799 (2)

(835 SE2d 712) (2019) (“An injury is in the course of employment if it occurs within

the period of employment at a place where the employee reasonably may be in the

performance of his duties while he is fulfilling his duties or engaged in something

incidental thereto.”) (citation and punctuation omitted); Lee v. Sears, 223 Ga. App.

897, 898 (2) (479 SE2d 196) (1996) (“An injury arises out of employment when a

reasonable person would perceive a causal connection between an employee’s

working conditions and his injury.”). See also White v. Excalibur Ins. Co., 599 F2d

50, 53 (II) (5th Cir. 1979) (member of two-person driving team who was sleeping in

the cab at the time of collision was within the course of his employment).

      As for the dispositive issue of the parties’ relationship, under longstanding

Georgia law,

      the true test . . . to be applied in determining whether the relationship of
      the parties under a contract for the performance of labor is that of
      employer and servant, or employer and independent contractor, lies in
      whether the contract gives, or the employer assumes, the right to control
      the time, manner and method of executing the work, as distinguished


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      from the right merely to require certain definite results in conformity to
      the contract.


Golosh v. Cherokee Cab Co., 226 Ga. 636, 637 (176 SE2d 925) (1970) (citation and

punctuation omitted). “The existence of this right to control by the employer may be

inferred where the person is employed generally to perform certain services for

another, and there is no specific contract to do a certain piece of work according to

specifications for a stipulated sum.” Boatright v. Old Dominion Ins. Co., 304 Ga.

App. 119, 121 (695 SE2d 408) (2010) (citation and punctuation omitted).

      On the issue of whether G&W had the “the right to control the time, manner

and method of executing the work,” Golosh, 226 Ga at 637, the undisputed record

evidence shows that G&W hired Estes and her husband generally to drive its tractor

trailer. G&W owned and had DOT authority over the tractor trailer, and when Estes

and her husband drove, it was under G&W’s DOT authority. G&W retained the right

to terminate Estes and her husband.

      G&W paid all costs of operating the tractor trailer. It was responsible for the

maintenance of the tractor trailer, and G&W paid for the fuel and inspections of its

tractor trailers and its drivers’ records. Although Estes and her husband paid for

“scale tickets,” G&W reimbursed them.

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      G&W was responsible for assigning loads for hauling to Estes and her husband

and for dispatching the tractor trailer; Estes and her husband were not allowed to find

their own loads and had no discretion over which loads they hauled. G&W’s drivers

had two or three days off between trips, but if the regulations regarding driving hours

allowed it, the drivers were assigned loads.

      G&W arranged the pickup and delivery times for the loads that Estes and her

husband hauled, and communicated those times to Estes and her husband. Although

G&W did not direct Estes and her husband to take specific routes when making

deliveries, to buy fuel from specific locations, or to wear uniforms, it could have done

so. G&W had the right to designate whether Estes or her husband would drive the

first leg of a trip, as long as their hours were in compliance with regulations, and it

had the right to direct how they should strap a load. G&W supplied Estes and her

husband with log books and required them to be turned in every week.

      G&W’s president testified that a driver could refuse a load only if she had “an

issue”; if she refused a load otherwise, she would not keep her job with the company.

To show that G&W did not control the time, manner, and method of executing the

work, Estes points to her testimony that she could decline certain loads and she did



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so on one occasion, but this does not contradict the president’s testimony that a driver

could decline a load under limited circumstances.

      “The test [for determining whether a person is an employee or an independent

contractor] is not whether the employer did in fact control and direct the employee

in the work, but it is whether the employer had that right under the employment

contract.” Golosh, 226 Ga. at 638-639 (emphasis omitted). The undisputed evidence

demonstrated G&W’s assumption of the right to control the time, manner and method

of Estes’ work. Given this evidence, “the fact that [G&W] issued its workers Internal

Revenue Service Form 1099 (rather than Form W-2) . . . and did not withhold taxes

from their paychecks or provide insurance for the workers does not create a jury

question on [Estes’] status as an employee.” Boatright, 304 Ga. App. at 122 (1).

       Estes briefly argues that G&W is responsible for her husband’s actions under

federal law. But the law she cites does not help her. “[F]ederal law creates a statutory

employment relationship between interstate carriers and the drivers of the trucks

leased to them, but we believe that whether that statutory employment relationship

is sufficient to constitute an employer/employee relationship for the purposes of

workers’ compensation is a question of state law.” Judy v. Tri-State Motor Transit

Co., 844 F2d 1496, 1501 (II) (11th Cir. 1988).

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      For these reasons, Estes’ claims were barred by the exclusive remedy provision

of the Worker’s Compensation Act and we affirm the trial court’s grant of summary

judgment to G&W. Given this resolution, we dismiss G&W’s cross-appeal as moot.

      Judgment affirmed in Case No. A19A2385. Case No. A19A2386 dismissed as

moot. McMillian, P. J., and Senior Appellate Judge Herbert E. Phipps concur.




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