TYSON et al.
SCOTTSDALE INDEMNITY COMPANY.
ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.
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,
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).
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.
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.
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).
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
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
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 ...