Substitution of party. DeKalb State Court. Before Judge Lopez.
Jimmy Hwang, for appellant.
Gray, Rust, St. Amand, Moffett & Brieske, Michael D. St. Amand, for appellee.
Alexander Padilla appeals the order granting summary judgment to Ermes Medrano in this personal injury action. He argues that the trial court erred by refusing to substitute Medrano Flooring and General Contractors, Inc. as the defendant. We vacate and remand the case to the trial court to rule on Padilla's motion to substitute before ruling on Ermes Medrano's motion for summary judgment, given the trial court's finding in its order granting summary judgment that Medrano Flooring is the proper party.
Padilla filed a personal injury action against Ernesto Cruz-Martinez and Ermes Medrano d/b/a Medrano Flooring and General Contractors, Inc. arising out of a collision between one vehicle and a retaining wall. Padilla was a passenger, Cruz-Martinez was the driver, and Ermes Medrano was the owner of the vehicle. Cruz-Martinez moved for summary judgment. The trial court granted summary judgment to Cruz-Martinez on the ground that he and Padilla were co-employees and Padilla's action was thus barred by the exclusive remedy provision of the Workers' Compensation Act, OCGA § 34-9-11 (a). In October 2013, we affirmed the grant of summary judgment pursuant to Court of Appeals Rule 36. Padilla v. Cruz-Martinez, 324 Ga.App. XXIV (2013).
In December 2013, Ermes Medrano moved for summary judgment on multiple grounds, including that Padilla's action against him was also barred by the exclusive remedy provision, because Padilla was injured in the scope of his employment with Medrano Flooring and Ermes Medrano was his supervisor and co-employee. In response, Padilla moved to substitute Medrano Flooring and General [332 Ga.App. 394] Contractors, Inc. as the party defendant in place of Ermes Medrano d/b/a Medrano Flooring and General Contractors, Inc.
The trial court did not rule on Padilla's motion to substitute. The court granted Ermes Medrano's motion for summary judgment, holding that " because [Padilla] was an employee of Medrano Flooring, the proper party to this litigation is Medrano Flooring and not Defendant Medrano." The court further held:
Based on the record, and Defendant Medrano's own admission, ... [Padilla] was in fact an employee of Medrano Flooring at the time of the incident. As such, The Workers' Compensation bar under OCGA § 34-9-11 would apply. [Padilla's] sole remedy would be to apply for workers' compensation, and not a tort action against his employer.
Finally, the court held that Padilla had not submitted sufficient evidence to pursue his negligent entrustment, hiring, retention and supervision claims. Padilla filed this appeal.
Padilla argues that Medrano's motion for summary judgment was barred by laches, as he should have filed the motion when Cruz-Martinez filed his. He cites no statutory or case authority, and we have found none, where laches has been applied to bar the filing of a motion for summary judgment. OCGA § 9-11-56 (b), however, provides that " [a] party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof." (Emphasis supplied.) " 'At any time' obviously means at any time before a trial begins in which a final judgment is to be rendered. ..." Braselton Bros. v. Better Maid ...