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Tyson v. Scottsdale Indemnity Co.

Court of Appeals of Georgia, Third Division

September 27, 2017

TYSON et al.


          ANDREWS, JUDGE.

         Howard Tyson sustained serious injuries after he was hit by a tree limb. He filed suit against Hank Rowe d/b/a Shellmar Tree Service ("Shellmar"), who filed a third-party complaint against Shellmar's general commercial liability insurer, Scottsdale Indemnity Company. The trial court granted summary judgment to Scottsdale, finding that Shellmar's insurance policy excluded coverage to Tyson because he was working for Rowe at the time of the accident. Tyson and Rowe appeal, contending that the trial court erred in granting summary judgment because (1) the policy did not exclude Tyson; (2) there were genuine issues of material fact regarding whether Rowe had knowledge of the policy exclusions and whether Scottsdale made representations to Rowe that the policy covered "anyone, " such that the policy should have been reformed; and (3) the policy did not comply with provisions of Georgia's Surplus Line Insurance Law (OCGA § 33-5-20 et seq.). For the reasons that follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Gayle v. Frank Callen Boys & Girls Club, Inc., 322 Ga.App. 412, 412 (745 S.E.2d 695) (2013).

         So viewed, the record shows that Rowe owned and operated Shellmar. Beginning in 2012, Tyson began working for Rowe by raking, piling limbs, and cleaning up job sites after trees were taken down. Tyson did not work for Rowe fulltime; his hours varied depending on how much work Rowe had available. On September 11, 2014, Rowe and Tyson, along with other workers, traveled to Sea Island in Shellmar trucks to remove several trees and all tree debris from the yard of a house under construction. Tyson's job was to help remove limbs and debris after the trees were taken down. As Rowe and the others were taking down the last tree, Tyson was standing off to the side, a safe distance away from the tree, as was a requirement of his job. However, he was still in the yard. Although no one saw what happened, Tyson was struck in the neck by a large pine limb. As a result of the accident, Tyson is a quadriplegic.

         Tyson and his partner filed a claim against Scottsdale, which was denied. They then filed suit against Rowe, setting forth claims for negligence, strict liability, breach of contract, and loss of consortium. Rowe answered and asserted a third-party complaint against Scottsdale on the ground that Scottsdale improperly denied coverage. After a hearing, the trial court granted Scottsdale's motion for summary judgment. This appeal follows.[1]

         1. Tyson and Rowe contend that the trial court erred in determining that the policy excluded Tyson from coverage because he was not engaged in a task at the time of the accident, but rather standing away from the tree-cutting area, speaking on the telephone. We disagree.

In construing an insurance policy, we begin, as with any contract, with the text of the contract itself. One of the most well-established rules of contract construction is that the contract must be construed as a whole, and the whole contract should be looked to in arriving at the construction of any part.

Royal v. Ga. Farm Bureau Mut. Ins. Co., 333 Ga.App. 881, 882 (777 S.E.2d 713) (2015).

         The commercial general liability insurance policy issued by Scottsdale to Shellmar provided up to $1, 000, 000 in bodily injury coverage. However, the policy excludes coverage to bodily injury to "an employee, leased worker, temporary worker, or volunteer worker of any insured" or "[a]ny contractor, subcontractor, sub-subcontractor or anyone hired or retained by or for any insured" if the injury "arises out of and in the course of their employment or retention[.]" (Punctuation omitted.) An "employee" is defined to include a "leased worker, " (a worker leased by a labor leasing firm) but not a "temporary worker" ("a person who is furnished to you to substitute for a permanent 'employee' on leave or to meet seasonal or short-term workload conditions").

         Pretermitting whether or not Tyson was a Shellmar "employee" as defined by the policy, the undisputed evidence shows that he was "hired or retained" by Shellmar to clean up tree debris on the day of the accident. Indeed, Tyson testified that he was being paid to work at the time the tree fell.

         Given this evidence, the relevant inquiry is whether Tyson's injuries arose out of or in the course of his employment or retention. As our Supreme Court has explained,

Georgia courts have not construed the terms "in the course of" and "arising out of" employment outside the context of workers' compensation law. However, the same reasoning used in workers' compensation cases has been held to be ...

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