When analyzing an employee’s “break” during the the workday, courts generally focus on the nature of the employee’s activity at the time of the injury, not whether the person was paid for it or was free to do something else.
The Georgia Court of Appeals recently decided a case arising out of a declaratory judgment action filed by an insurance company against a personal injury accident victim’s employer, the employer’s workers’ compensation insurance carrier, the victim’s supervisor, and the victim. The insurance company brought the action seeking a judgment declaring that commercial general liability and auto insurance policies it issued to the employer didn’t cover liability for injuries suffered by the victim at a job site while he was working for the employer in 2018.
The insurance company argued that the trial court erred by denying its motion for summary judgment (as amended) based on policy language excluding coverage for injuries to the employer employees “arising out of and in the course of [their] employment” with the employer.
Background
In the spring of 2018, the victim started working for his employer as a “cut down man” in a commercial logging operation. His job was to operate a feller buncher to cut trees in a controlled way so that they could be loaded onto flatbed trucks. He reported to work when and where directed by his employer, and he was paid every week based on the weight of the wood he cut.
He testified that on the day in question, he was working at a wooded job site along with his supervisor and other employees. The victim said that about noon, he stopped work to eat lunch. He got in his personal vehicle to drive to a nearby restaurant to get some fried chicken. As he was leaving the logging area on a dirt road, he noticed that the supervisor was operating a skidder to push a loaded truck that needed extra traction to drive the unpaved road. The victim put his vehicle in park (facing the skidder) to wait for the operation to finish; when the supervisor had the loaded truck moving, he turned the skidder around and headed in the victim’s direction. As the victim sat in his vehicle, the supervisor accidentally drove into the victim’s vehicle, causing him severe injury.
The victim initially received workers’ compensation payments from the employer’s carrier for a few weeks, but then a dispute arose concerning workers’ compensation coverage, and the victim sued his employer and his supervisor.
To get clarity as to its coverage obligations, the insurance company filed the present action seeking the following:
- A declaration that the victim was acting within the scope of his employment at the time of his injury;
- That his injuries were compensable under the workers’ compensation act (the WCA); and
- That the insurance company’s WCA exclusions in the policies issued to the employer precluded coverage.
During the lawsuit, the employer and the workers’ compensation insurance carrier first agreed that the victim’s injuries were compensable under the WCA. The insurance company moved for summary judgment on this issue, which wasn’t opposed by the employer and the workers’ compensation insurance carrier. However, after the supervisor affidavit was given in related litigation, the employer and the workers’ compensation insurance carrier changed course and opposed the insurance company’s motion, relying on that affidavit. The affidavit stated:
On the day of the accident, I was employed as a crew leader and the victim was assigned to my crew and was under my supervision. Around noon, we ate lunch together in a service truck as I drove around the property where we were clearing timber.
The drive lasted at least 15 minutes. During the drive, I instructed the victim on his assignment for the day. We looked at a GPS map together and discussed the location where he was to be working. I drove to the location where he was to be working and showed him exactly where he was to be.
I then returned him to where his feller buncher was parked. He got out of my truck there. I told him to return to the area shown to him and to get that brow cut out because the other crew members would be completing their assigned tasks and would come to his area to gather the trees he was to cut.
I next saw the victim a few minutes later, after the skidder I was driving was in a collision with the vehicle he was driving. The victim abandoned his assigned task without my permission. Such an abandonment would normally result in termination of employment.
After a hearing, the trial court denied the insurance company’s amended summary judgment motion and granted a certificate of immediate review. The Court of Appeals granted the insurance company’s application for interlocutory review and argued that the trial court should have granted its motion because the record shows that the victim’s injury arose out of and in the course of his employment with the employer, so any liability was precluded by policy language excluding coverage for workplace injuries.
The Court of Appeals Agreed with the Insurer
Presiding Judge Sara Doyle of the Georgia Court of Appeals wrote in her opinion that the insurance company’s commercial general liability and automobile policies contain nearly identical language: “This insurance does not apply to: … ‘bodily injury’ to … [a]n ‘employee’ of the insured arising out of and in the course of employment by the insured.” On appeal, there was no genuine dispute that the victim was an “employee” and that he suffered “bodily injury.” The policies further explicitly excluded coverage for any obligation under workers’ compensation law.
Judge Doyle explained that in the workplace injury context, Georgia case law is clear that general liability insurance contracts may (as was done here) exclude coverage for injuries sustained on the job that are covered by the Workers’ Compensation Act. The question before the Court was whether there was a genuine issue of fact as to whether the victim’s injury was such an injury.
Judge Doyle explained that the Georgia Supreme Court has clarified that even though eating lunch isn’t the actual work an employee is hired to do, an ordinary mid-day lunch break on the employer’s premises is still considered to be “in the course of” employment for purposes of the WCA. This is because eating lunch at the workplace is an activity incidental to work and “reasonably necessary to sustain [an employee’s] comfort at work,” the judge opined, quoting a 2020 Supreme Court decision. When analyzing this, courts generally focus on the nature of the employee’s activity at the time of the injury, not whether she was paid for it or was free to do something else, the judge said.
Furthermore, eating lunch during a break on the premises, or traveling to and from the work area for lunch, is considered to be “arising out of” employment when
the causative danger [is] incidental to the character of the employment, and not independent of the relation of master and servant. The accident must be one resulting from a risk reasonably incident to the employment. And a risk is incident to the employment when it belongs to, or is connected with, what a workman has to do in fulfilling his contract of service.
Therefore, if an employee slips and falls on a wet surface, for example, when going into or out of an employee break room, “[i]t logically follows that her injury was causally connected to the conditions under which she worked, and her injury, therefore, ‘arose out of’ her employment.”
Here, the victim said he was sitting in his vehicle in the process of leaving the job site to go to lunch when he was hit by the skidder driven by his supervisor during logging operations. The victim hadn’t yet left the logging area but was stopped and waiting for a stuck logging truck to be pushed along the roadway by the skidder. Thus, it was undisputed, Judge Doyle wrote, that the victim’s injury was caused by heavy equipment returning from a task that was part of the timber harvest operation. Further, on the date of the accident, the police officer at the scene noted that the supervisor stated he was unsure why the victim was driving his private vehicle at the time of the collision. The supervisor’s subsequent affidavit didn’t dispute the victim’s assertions that he was in his truck preparing to go to lunch. Therefore, the supervisor’s assertion that the victim had “abandoned” his assigned task didn’t change the victim’s legal status as to whether he’d abandoned the course of his employment at the time of the accident. He had not, the Court of Appeals concluded.
The Court found that, even considering the supervisor’s affidavit, the undisputed evidence showed that at the time the supervisor ran into the victim’s vehicle, the victim was still in the logging area on his way to lunch and wasn’t otherwise engaged in a personal activity outside the course of his employment. The collision with a logging skidder at that time and in that location was a risk “reasonably incident” to the victim’s employment in the logging operation. Therefore, the injuries he sustained fell within the insurance company policy exclusion for “ ‘bodily injury’ to an ‘employee’ of the insured arising out of and in the course of employment by the insured,” and the trial court erred by denying the insurance company’s motion. The judgment was reversed. Harco National Insurance Co. v. Knowles, 2024 Ga. App. LEXIS 96 (Ga. App. March 7, 2024).
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