SECOND DIVISION

BARNES, P. J.,

BOGGS and RICKMAN, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

November 16, 2016

In the Court of Appeals of Georgia

A16A1249. SAXON v. STARR INDEMNITY & LIABILITY

COMPANY et al.

RICKMAN, Judge.

In this declaratory judgment action, Gregory Saxon appeals from three trial

court orders granting summary judgment in favor of three insurance companies –

Starr Indemnity & Liability Company (“Starr Indemnity”), First Acceptance

Insurance Company of Georgia, Inc. (“First Acceptance”), and Knightbrook

Insurance Company (“Knightbrook”). We affirm.

The material facts of this case are undisputed. Talmadge Royal d/b/a Sno Frost

was involved in the business of selling ice cream freezers and ice cream to

convenience stores. Royal’s ice cream truck usually went on deliveries with one

employee driver and one employee helper, and the two often switched duties from
day to day. On November 9, 2012, Saxon and Arron Meyers were employed byRoyal

as delivery drivers, and rode together to make deliveries – Meyers as driver and

Saxon as helper. As they were en route to make some final deliveries, Meyers struck

the rear of a vehicle which was stopped at a red traffic light, and he was cited for

following too closely. At the time of the accident, Saxon and Meyers were employees

of Royal and were performing duties in the course and scope of and/or related to their

employment with Royal. At the time of the accident, although Royal had three or

more employees

1

and was subject to the Georgia Workers’ Compensation Act (the

“Act”),

2

he had not procured workers’ compensation coverage. Saxon did not file a

claim for workers’ compensation benefits with the State Board of Workers’

Compensation, and he received no workers’ compensation benefits.

On November 21, 2013, Saxon filed a complaint for damages (“tort action”)

against Meyers and Royal. He asserted a claim for negligence against Meyers, and

claims for imputed liability and for negligent hiring, training, and supervision, and

1 See OCGA § 34-9-2 (a) (2) (2012) (“This chapter shall not apply to . . . any

person, firm, or private corporation . . . that has regularly in service less than three

employees in the same business within this state . . . .”). In addition to the accident

occurring in 2012, the policies of all three insurance companies involved were issued

in 2012.

2 See OCGA § 34-9-1 et seq. (2012).

2
negligent entrustment against Royal. In January 2014, Starr Indemnity, which

company provided liability insurance to Royal for Royal’s truck that was involved in

the accident, filed the instant petition for declaratory judgment. Starr Indemnity

sought a judgment declaring that under its liability policy, there were no coverage

benefits available for damages in the tort action. In February 2015, the trial court

granted First Acceptance’s motion to intervene in the declaratory judgment action;

First Acceptance provided liability insurance to Meyers for Meyers’s personal

automobile. In March 2015, the trial court granted Knightbrook’s motion to intervene

in the declaratory judgment action; Knightbrook had issued an insurance policy to

Saxon for Saxon’s personal vehicles, and that policy provided uninsured motorist

coverage. Saxon sought indemnity or liability coverage benefits under the policies

issued by Starr Indemnity and First Acceptance. Saxon sought uninsured motorist

benefits from Knightbrook.

All three insurance companies moved for summary judgment, arguing that

certain provisions in their respective policies excluded coverage for damages Saxon

sought in the tort action,

3

and that the Act provided Saxon’s exclusive remedy. Saxon

3 Starr Indemnity’s policy contained provisions excluding coverage for

workers’ compensation obligations for which Royal may liable, and for bodily injury

to Royal’s employees or fellow employees, arising out of and in the course of

3
did not dispute the plain language of the policies’ exclusion provisions, or of the Act.

Rather, he argued that if the Act and the policies’ exclusion provisions were enforced,

he would be left without a remedy and such a result would be against public policy.

This is also Saxon’s argument on appeal.

In well-reasoned and detailed orders, the trial court granted summary judgment

in favor of all three insurance companies. With regard to Starr Indemnity and First

Acceptance, the trial court correctly ruled that the Act provided Saxon’s exclusive

remedy, that there was no applicable exception to the exclusive remedy provision of

the Act, and that in this case enforcement of the Act and of the policies’ exclusion

provisions did not violate public policy. With regard to Knightbrook, the trial court

reiterated that the Act provided Saxon’s exclusive remedy, and concluded that given

that Saxon could not recover in the tort action as a matter of law because the Act

provided his exclusive remedy, he could not recover UMbenefits from Knightbrook.

employment. First Acceptance’s policy contained a provision similarly excluding

coverage for the insured’s employee and fellow employee; it additionally contained

a business-use exclusion provision. The policy issued by Knightbrook contained a

workers’ compensation obligation exclusion provision and a business-use exclusion

provision.

4
1. On appeal, Saxon contends that the trial court erred in granting summary

judgment in favor of the insurance companies when enforcement of the Act in this

case violates public policy because “injured parties would be unfairly punished just

because they were employed by someone who breached his or her duty to purchase

worker’s compensation insurance.”

Saxon had one year after his injury to file a claim for workers’ compensation

benefits with the State Board of Workers’ Compensation. See OCGA § 34-9-82 (a)

(2012). But Saxon failed to do so in this case. And despite Royal’s failure to procure

workers’ compensation coverage, relief under the Act was Saxon’s only available

remedy. 

OCGA § 34-9-11 (a) (2012) pertinently provides as follows.

The rights and the remedies granted to an employee by this chapter

shall exclude all other rights and remedies of such employee, his

personal representative, parents, dependents, or next of kin, at common

law or otherwise, on account of such injury, loss of service, or death;

provided, however, that no employee shall be deprived of any right to

bring an action against any third-party tort-feasor, other than an

employee of the same employer . . . .

(Emphasis supplied). “[I]t has been held repeatedly that [OCGA § 34-9-11] grants the

injured employee’s employerstatutory immunity from suit by the employee to recover

5
damages other than workers’ compensation benefits,” and it has also been made clear

that this “statutory immunity from suit includes the statutory employer regardless

whether that statutory employer had actually paid the workers’ compensation

benefits.” (Citations omitted; emphasis supplied) Modlin v. Swift Textiles, Inc., 180

Ga. App. 726, 731 (2) (350 SE2d 273) (1986).

The Act requires that employers insure the payment of workers’

compensation benefits to injured workers, either by procuring insurance

or by qualifying as a self-insurer. If no insurance is obtained, the

employer remains liable for payment of benefits. If the employer

becomes insolvent, then the agent of the employer responsible for

procuring workers’ compensation benefits may be held personally liable

for payment of such benefits [awarded by the State Board of Workers’

Compensation].

(Citations omitted.) Sheehan v. Delaney, 238 Ga. App. 662 (1) (521 SE2d 585)

(1999);see Samuel v. Baitcher, 247 Ga. 71-72, 74 (274 SE2d 327) (1981).

Therefore, contrary to Saxon’s contention, an injured party would not be

unfairly punished, because an employer (or employer’s agent) who failed to obtain

insurance would remain liable for payment of benefits awarded by the Board.

4

4 Saxon’s further argument that Georgia should mirror other states and provide

an exception to the Act’s exclusive remedy provision was not made below, and

therefore, we will not consider it on appeal. See Pfeiffer v. Ga. Dept. of Transp., 275

6
2. Saxon also contends that the trial court erred in granting summary judgment

in favor of the insurance companies when enforcement of the policies’ exclusion

provisions violates public policy because such enforcement would “not protect [him]

as to his actual losses.” In Southern Guaranty Ins. Co. v. Preferred Risk Mut. Ins.,

257 Ga. 355, 356 (359 SE2d 665) (1987), the Supreme Court of Georgia held:

If the compensation of victims were the overriding consideration in

every case, we would conclude that no exclusion is possible in

automobile liability policies. However, since Georgia law does not

require liability insurance in every case, we have concluded that

exclusions are not per se prohibited but must be individually evaluated

to determine whether they are against public policy.

(Citation omitted.) Such an evaluation requires that we determine “whether in the

context of [each] case the exclusion either unfairly penalizes innocent victims or

unfairly exposes the insured to liability” Id. “This results in a basic rule that if either

of the interests dealt with is left unprotected, the exclusionary clause in the insurance

contract offends public policy. This rule, of course, does not, apply when neither the

injured party nor the unsuspecting insured is left unprotected.” (Citation and

Ga. 827, 829 (2) (573 SE2d 389) (2002) (“[A]n appellate court need not consider

arguments raised for the first time on appeal.”) (footnote omitted).

7
punctuation omitted.) Federated Mut. Ins. Co. v. Dunton, 213 Ga. App. 148, 149 (1)

(444 SE2d 123) (1994).

Given that in the instant case, the remedy of the Act was available to Saxon,

he was not left unprotected. Indeed, Saxon’s complaints about the Act are not about

being left unprotected; he complains about not being “adequately compensate[d] . .

. for his injuries,”

5

about not being protected as to his “actual losses,” and about the

lack of a “realistic remedy at law,” particularly because, as he claims, the procedures

of the Act are cumbersome and enforcing any judgment obtained by the Board “can

be extremely difficult or impossible due to extenuating circumstances such as

businesses closing, bankruptcy, or corporate shell games.” Saxon’s complaints about

the Act are for the General Assembly’s determination, not this Court. Even assuming

that any of the foregoing allegedly difficult or impossible circumstances could work

to bar enforcement of the policies’ exclusion provisions, Saxon did not assert or

show, either below or on appeal, that any of those circumstances existed in this case,

and his guesses or speculation about them are insufficient on summary judgment. See

Heath v. Rush, 259 Ga. App. 887, 888 (578 SE2d 564) (2003) (“Guesses or

speculation which raise merely a conjecture or possibility are not sufficient to create

5

(Emphasis supplied.)

8
even an inference of fact for consideration on summary judgment.”) (citation and

punctuation omitted). As the trial court recognized, “the [p]olicy exclusions ‘dovetail’

with the statutory immunity provided . . . under the Act” and are not against public

policy. Compare generally Govt. Employees Ins. Co. v. Dickey, 255 Ga. 661 (340

SE2d 595) (1986) (family-purpose exclusion in automobile insurance policy

purchased in Georgia was against public policy where it was broader than the tort

immunity of the state in which the insured was sued, North Carolina).

3. Saxon argues that enforcement of the policies’ exclusion provisions would

violate federal and Georgia public policy of requiring statutory compulsory minimum

automobile limits coverage.

Saxon cites Anderson v. Southeastern Fidelity Ins. Co., 251 Ga. 556, 557 (307

SE2d 499) (1983), wherein the Supreme Court of Georgia iterated “the public policy

of our state, enunciated in the advent of compulsory motor vehicle liability

insurance[] [is] that innocent persons who are injured should have an adequate

recourse for the recovery of their damages.” (Citations omitted.) As previously

addressed, Saxon did not point to any evidence showing that in this case the remedy

available to him (the Act) was inadequate. Additionally, Saxon did not cite any

federal public policy that was violated by enforcing the policies’ exclusion

9
provisions. The policies’ exclusion provisions are consistent with Georgia’s liability

and Workers Compensation statutes, and are enforceable. See generally Williams v.

Lumbermens Mut. Cas. Co., 164 Ga. App. 435 (297 SE2d 345) (1982).

4. Saxon relies on Hudson v. Whited, 250 Ga. App. 451 (552 SE2d 447) (2001),

as support that UMcoverage is available in this case. But Saxon’s reliance on Hudson

is misplaced. A third-party as tortfeasor was not specifically pointed out in Hudson;

but given the reference in Hudson to “the discovery process and trial of this case,” Id.

at 454, and given the Act’s grant of tort immunity for employers and co-employees,

see OCGA § 34-9-11 (a) (2001), the discussion in Hudson regarding UM coverage

necessarily presumed the existence of a third-party tortfeasor, which is not present in

the instant case. See, e.g., Lewis v. Cherokee Ins. Co., 258 Ga. 839 (375 SE2d 850)

(1989). Accordingly, the discussion in Hudson, about the enforceability of a clause

that could thwart an insured’s ability to recover allsums to which he could be legally

entitled, does not apply to the instant case.

6 Hudson, 250 Ga. App. at 452-454.

6 Although Saxon claims that the trial court erred in granting summary

judgment because a genuine issue of material fact exists as to whether he properly

notified Knightbrook of the car collision, we deem this claim abandoned, as Saxon

did not present any argument or citation of authority on that issue in his brief. See

Court of Appeals Rule 25 (c) (2) (“Any enumeration of error which is not supported

in the brief by citation of authority or argument may be deemed abandoned.”) ; see

also Johnson v. State, 290 Ga. App. 255, 259 (1) (d) (659 SE2d 638) (2008) (deeming

10
Saxon failed to meet his burden on summary judgment, see generally Canaan

Land Properties v. Herrington, 330 Ga. App. 17 (766 SE2d 493) (2014) (nonmovant

must point to specific evidence giving rise to a triable issue), and the trial court did

not err in granting summary judgment in favor of the insurance companies.

Judgment affirmed. Barnes, P. J., and Boggs, J., concur.

abandoned an argument that was unsupported by citation to authority).

11