In Georgia, Borrowed Servant is Co-Employee of Borrowing Employer’s “Regular” Employee

In Georgia, a borrowed servant is, even though temporarily, the co-employee of the borrowing employer’s regular employees. Accordingly, such a borrowed servant may not sue one of the employer’s regular employees in tort for his or her work-related injuries, since the civil action is barred by the exclusive remedy provisions of the Georgia Workers’ Compensation Act [Sprowson v. Villalobos, 2020 Ga. App. LEXIS 222 (Mar. 31, 2020)]. Finding the record clearly showed that all three elements existed for the borrowed servant to be considered an employee of the borrowing employer: (1) the borrowing employer had complete control and direction of the servant for the occasion; (2) the lending employer had no such control; and (3) the borrowing employer had the exclusive right to discharge the servant, the court found that the state trial court erred when it refused to grant the co-employee defendant’s motion for summary judgment.

Background

In 2013, Waste Pro entered into a contract with Labor Ready, pursuant to which Waste Pro compensated Labor Ready for providing temporary employees to perform work under Waste Pro’s general or direct supervision. Subsequently, Labor Ready assigned Villalobos to work for Waste Pro. Villalobos sustained injuries while working as a crew member on a sanitation truck owned by Waste Pro and driven by Sprowson, a Waste Pro employee. After the accident, Villalobos received workers’ compensation benefits from Labor Ready for the injuries he sustained.

Villalobos filed a tort action against various defendants, including Waste Pro and Sprowson. A trial court determined that while OCGA § 34-9-11 — Georgia’s exclusive remedy provision — precluded any recovery against Waste Pro and the other corporate defendants, but not against Sprowson. Following the grant of summary judgment to the corporate defendants, the case was transferred to Bryan County, where Sprowson resided. Sprowson again attempted to obtain summary judgment in his favor. Although the trial court denied his repeated motions, it did grant Sprowson a certificate of immediate review, and the appellate court granted his application for an interlocutory appeal.

Employee of the Same Employer

Sprowson contended that under OCGA § 34-9-11(a), he must be considered “an employee of the same employer” as Villalobos, and as such, he could not be held liable in tort. The appellate court agreed. Citing Underwood v. Burt, 185 Ga. App. 381 (364 SE2d 100) (1987), the court held that a borrowed servant was, even though temporarily, an employee of the same employer of any regular employee of the borrowing employer. One employee may not sue another in tort for injuries sustained in the course and scope of the employment.