FIFTH DIVISION

MCFADDEN, P. J.,

BROWN and MARKLE, 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.

https://www.gaappeals.us/rules

January 10, 2024

In the Court of Appeals of Georgia

A23A1298. WELLPATH, LLC v. COX.

BROWN, Judge.

Joseph Cox suedHeatherLawrenz andWellPath, LLC, for injuries he sustained

when Lawrenz allegedly collided with a vehicle driven by Cox. Cox alleged that

Lawrenz was acting within the scope of her employment at the time of the collision

and that WellPath was therefore liable under the theory of respondeat superior. The

trial court denied WellPath’s motion to withdraw its admissions and granted Cox’s

motion for partial summary judgment on the issue of respondeat superior. WellPath

appeals these rulings, contending that (1) there is a genuine issue of material fact as

towhether Lawrenzwas an employee or independent contractor and (2) the trial court
erred in denying WellPath’s motion to withdraw its admissions.1 For the reasons

explained below, we (1) reverse the denial of the motion to withdraw and remand for

the trial court to reconsider its ruling, and (2) reverse the grant of partial summary

judgment to Cox.

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.

We apply a de novo standard of review to an appeal from a grant or

denial 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.

(Citations and punctuation omitted.) Augusta Chronicle v. Woodall, 360 Ga. App. 576

(859 SE2d 617) (2021). Viewed in the light most favorable to WellPath, the

nonmoving party, the evidence shows that Lawrenz, a resident of South Carolina, was

under contract as an “ambassador” for WellPath, which had a contract to provide

medical care to prisons in the State of Georgia. Lawrenz was tasked with assisting

prison health service administrators with the transition over to WellPath. According

to Lawrenz, those prisons includedDooly, Pulaski, Wilcox, Rutledge, and Bainbridge

1 We are not persuaded by Cox’s contention that WellPath abandoned this

enumeration.

2
Correctional, and she was “a contractor that came in to assist [the prisons] with the

transition” and also help the prisons prepare for upcoming audits by the American

Correctional Association.2

On December 14, 2021, Lawrenz stayed in a hotel in Bainbridge. At

approximately 6:10 a.m. on December 15, 2021, Lawrenz was driving in her own

vehicle from her hotel to either Pulaski or Dooly prison, when she collidedwith Cox’s

vehicle. At the time of the collision, Lawrenz was on the phone with her husband;

Lawrenz’s car was equipped with Bluetooth and her phone would have been

connected to the Bluetooth. Cox sustained serious injuries and subsequently filed a

complaint against Lawrenz on February 3, 2022.

Procedural Facts

In her response to Cox’s requests for admission, filed on April 29, 2022,

Lawrenz admitted that on the date of the accident, she was a “contractor of

WellPath.” Lawrenz was deposed on August 26, 2022. The only persons present for

the deposition were Cox’s attorney, Lawrenz’s attorney, and the attorney for the

2 During her deposition, Cox’s counsel presented Lawrenz with her

“IndependentContractor Agreement,”datedAugust 29, 2021, and asked her specific

questions about the wording of the document andwho at WellPath presented it to her

or whether she had an attorney draw it up.

3
uninsured motorist carrier. On September 1, 2022, Cox moved to add WellPath as a

defendant. The trial court granted the motion, and on September 9, 2022, Cox filed

an amended complaint adding WellPath as a defendant and asserting that it was

vicariously liable forLawrenz’s allegednegligence based on the doctrine of respondeat

superior. WellPath was served with the amended complaint and various discovery

requests (interrogatories, requests for production of documents, and requests for

admission) on September 20, 2022, but the proof ofservice was notfiled until October

11, 2022.3 On November 8, 2022, Cox filed a motion for partial summary judgment

on the vicarious liability claim, asserting erroneously that because WellPath had failed

to respond timely to Cox’s requests for admission, it admitted that at the time of the

collision, Lawrenz “was an employee and/or agent of Defendant WellPath” and that

because WellPath retained the right to control the time, manner, and method of

Lawrenz’s work, she was not an independent contractor. On the same day, the trial

court ordered a “hearing on all issues” for December 15, 2022, and mandated that

3

Pursuant to OCGA § 9-11-4 (h), “[t]he person serving the process shall make

proof of such service with the court in the county in which the action is pending

within five business days of the service date. If the proof of service is not filed within

five business days, the time for the party served to answer the process shall not begin

to run until such proof of service is filed.” Accordingly, WellPath’s answer and

discovery responses were not due until November 11, 2022.

4
WellPath file an answer or responsive pleading within 20 days.4 WellPath filed an

answer and responses to the requests for admission (“RFA”) on November 10, 2022.

RFA #6 stated, “Please admit that at the time of the December 15, 2021 collision

Defendant Lawrenz was an employee and/or agent of Defendant WellPath.” In

response, WellPath stated, “Admitted.” In its answer, WellPath also admitted that

Lawrenz was an employee on the date of collision, but denied that she was acting

within the course and scope of her employment at the time of the incident.

The trial court held a hearing on the motion for partial summary judgment on

December 15, 2022. Lawrenz’s deposition wasfiledwith the trial court on December

30, 2022. On January 5, 2023, the trial court set a second hearing on the motion for

partial summary judgment, to be held on January 16, 2023. On January 13, 2023,

WellPath filed a motion to withdraw RFA #6, contending that it was unaware that

Lawrenz was an independent contractor until it received a copy of her deposition and

deposition exhibits on December 21, 2022, and January 4, 2023, respectively. In

support of the motion, WellPath filed the affidavit of Lawrenz’s direct supervisor at

4

In a subsequent e-mail to the parties, the trial court noted that the tolling

provisions of OCGA § 9-11-4 (h) applied to WellPath’s answer and discovery

responses.

5
WellPath, who averred that WellPath hires independent contractors such as Lawrenz

to assist it with the transition of multiple prison medical facilities to WellPath’s

control and that at the time of the collision, Lawrenz was providing services under an

independent contractor agreement, and that WellPath did not control the time,

manner, or method of Lawrenz’s contractual duties. A copy of the independent

contractor agreement was attachedto the affidavit.On January 16, 2023, the trial court

held a second hearing, during which counsel for WellPath explained that it had not

been a party to the case when Lawrenz’s deposition was taken and that his client had

been unable to locate a copy of the agreement; the only copy of the agreement in the

possession of WellPath or its counsel was the one produced by Cox’s counsel during

Lawrenz’s deposition.5

5As WellPath explained in its withdrawal motion, WellPath did not have a copy

of, and was unaware of the substance of, Lawrenz’s deposition until December 21,

2022, well after WellPath submitted its response to RFA #6; “[t]herefore, WellPath

did not have the benefit of . . . Lawrenz’s full testimony at the time of its initial

response.”WellPath further explained that it did not have a copy of, andwas unaware

ofthe substanceof,the independent contractor agreement until January 4, 2023, when

Cox’s counsel providedWellPath’s counsel with the exhibitstoLawrenz’sdeposition.

During the hearing, Cox’s counsel admitted that “[n]ot filing [Lawrenz’s]

deposition” was his mistake and “[t]hat’s just something that we . . . had to prevent,

falls on us. It was just an oversight.”

6
On January 31, 2023, the trial court entered an order denying WellPath’s

motion to withdraw its admission and granting Cox’s motion for partial summary

judgment.As to the former motion, the trial court essentially concluded that it was not

credible that WellPath was unaware of the independent contractor agreement given

that the agreement was prepared by WellPath and provided to Lawrenz for execution

and that the evidence proferred to overturn the admission was not credible. As to the

latter motion, the trial court concluded that based on WellPath’s admissions, at the

time ofthe collision, Lawrenzwas acting as an employee and/or agent ofWellPath and

was acting within the scope and course of her employment, but that even without the

admissions, based upon Lawrenz’s deposition testimony, there was evidence that

WellPath exercised control over the time, method, and manner of her work such that

she should be considered an employee and not an independent contractor, and that

at the time of the collision, Lawrenz was acting in the course and scope of her

employment with WellPath. This appeal followed.

1. WellPath contends that the trial court erred in denying its motion to

withdraw its admission. “We review the trial court’s ruling on this issue for an abuse

7
of discretion.” (Citation and punctuation omitted.) Carter v.VistaCare, 335 Ga.App.

616, 623 (4) (a) (782 SE2d 678) (2016).

OCGA § 9-11-36 governs requests for admissions. It provides that a party may

serve upon another party a written request for the admission ofthe truth of any matter

that is not privileged and is relevant to the pending action. See OCGA § 9-11-36 (a)

(1). See also OCGA § 9-11-26 (b) (1). “Pursuant to OCGA § 9-11-36 (b), any matter

admitted under this Code section is conclusively established unless the court, on

motion, permits withdrawalor amendment ofthe admission.”(Punctuation omitted.)

Njoku v. Adeyemi, 355 Ga. App. 1, 3 (1) (a) (842 SE2d 317) (2020). “There is a

two-pronged test to be employed when considering a motion to withdraw

admissions.” Fulton County v. SOCO Contracting Co., 343 Ga. App. 889, 897 (2) (a)

(808 SE2d 891) (2017). “A court may grant a motion to withdraw (1) when the

presentation of the merits will be subserved thereby and (2) the party obtaining the

admission fails to satisfy the court that the withdrawal will prejudice maintaining his

action or defense on the merits.” (Citation and punctuation omitted.) Crowther v.

Estate of Crowther, 258 Ga. App. 498, 500 (1) (574 SE2d 607) (2002). See also Turner

v. Mize, 280 Ga.App. 256, 257 (1) (633 SE2d 641) (2006). “If the movant satisfies the

8
court on the first prong, the burden is on the respondent to satisfy the second prong.

Both prongs must be established. . . . If the movant fails to make the required showing

to satisfy the first prong of the test, then the trial court is authorized to deny the

motion to withdraw the admissions.” (Citations and punctuation omitted.) Fulton

County, 343 Ga. App. at 897 (2) (a). “To demonstrate that the merits of an action

would be served by allowing withdrawal of admissions, the moving party must show

that the admitted requests either were refutable by admissible evidence having a

modicum of credibility or were incredible on their face, and that the denial was not

offeredsolelyforthepurposesof delay.”(Citation and punctuation omitted; emphasis

supplied.) Njoku, 355 Ga. App. at 3 (1) (a).

In its order prepared by Cox’s counsel, the trial court found WellPath’s

argument that it was unaware at the time it made its admission that Lawrenz had

executedan independent contractor agreement “not credible”because WellPath had

preparedthe contractor agreement and providedit toLawrenz for execution.The trial

court also found the evidence submitted by WellPath “in an attempt to overturn the

admission . . . not credible in light ofthe testimony of Defendant Lawrenz.” WellPath

contends that these rulings are erroneous because (1) “the ‘credibility’standard is not

9
whether the reason proferred for making an erroneous admission is admissible in a

trial court’s subjective opinion” and (2) the agreement itself, Lawrenz’s deposition

testimony, and Lawrenz’s supervisor’s affidavit are all credible evidence supporting

withdrawal. Pretermitting whether WellPath’s first argument is correct, we conclude

that the trial court erred in finding that there was a complete absence of admissible

evidence having a modicum of credibility.

The agreement proferred by WellPath in support of its motion to withdrawwas

exactly the same agreement presented by Cox’s counsel and affirmed by Lawrenz

during her deposition, where she repeatedly testified that she was a “contractor.”

Under these circumstances, we fail to see how the evidence submitted by WellPath

in support of its motion was “not credible in light of the testimony of Defendant

Lawrenz.” On the contrary, Lawrenz’s testimony and the evidence presented by Cox

during Lawrenz’s deposition directly refute WellPath’s admission. This evidence

coupled with the affidavit of Lawrenz’s supervisor attesting to the existence and

validity of the independent contractor agreement and Lawrenz’s status as an

independent contractor,6had the “modicum of credibility” required to establish the

6Although on appeal, Cox attacks the supervisor’s affidavit asself-serving,“the

record does not reflect that [he] raised any objection to the affidavit in the trial court

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first-prong of the test and was not “per se incredible.” See Bailey v. Chase Third

Century Leasing Co., 211 Ga. App. 60, 62 (1) (438 SE2d 172) (1993).

This does not, however, end our analysis. While the trial court considered and

ruled on the first part of the first prong, albeit erroneously, it did not rule on the

second part of the first prong.7 Accordingly, because the trial court failed to address

the entirety of the first prong, we reverse the denial of the motion to withdraw and

remand the case for the trial court to reconsider the motion. See Carter, 335 Ga. App.

at 625 (4) (a). See also Sayers v.Artistic KitchenDesign, 280 Ga.App. 223, 227 (2) (633

below; therefore, any such objections are waived.” May v.S.E.GA Ford, 344 Ga.App.

459, 460, n.2 (811 SE2d 14) (2018).

7

If the trial court concludes that WellPath has satisfied its burden as to the first

prong, the trial court must then consider howCox would be prejudiced in maintaining

his action if withdrawal was allowed. On this question, we note that “the purpose of

requests for admissions is to expedite trial and clarify the issues in a case, not gain

tactical advantage over an opponent.” (Citation and punctuation omitted.) Sayers v.

Artistic Kitchen Design, 280 Ga. App. 223, 226 (2) (633 SE2d 619) (2006). See also

Riberglass, Inc. v. ECO Chem. Specialties, 194 Ga.App. 417, 419 (1) (b) (390 SE2d 616)

(1990) (“[a]ny party is certainly ‘prejudiced’ by being forced to try a case rather than

take, in effect , a default, but he is not prejudiced in trying the merits of the case,

which is the question at issue”) (citation and punctuation omitted). Here, aside from

arguing that WellPath “keep[s] moving the goalpost” on an issue that Cox himself

explored with Lawrenz during her deposition, Cox did not present other evidence

during the hearing on this question.

11
SE2d 619) (2006); Moore VenturesLtd.Partnership v.Stack, 153 Ga.App. 215, 218 (264

SE2d 725) (1980).

2. In its order, the trial court granted partial summary judgment to Cox on his

claim for vicarious liability, ruling that even without the admission, based upon

Lawrenz’s deposition testimony, there was evidence that WellPath exercised control

over the time, method, and manner of her work such that she should be considered an

employee and not an independent contractor, and that at the time of the collision,

Lawrenz was acting in the course and scope of her employment with WellPath.

WellPath contends that this ruling was erroneous because there are genuine issues of

fact as to “both Lawrenz’s employment status and ‘course and scope’ liability.” We

agree that the trial court’s ruling was erroneous.

[A]n employer is generally not liable for the torts of an

independent contractor. The historical reason for this common-lawrule

is that because the employer has no right of control over the manner in

which the work is to be done, it is to be regarded as the contractor’s own

enterprise, and he, rather than the employer, is the proper party to be

chargedwith the responsibility forpreventing the risk.To this end, when

a contract of employment clearly denominates the other party as an

independent contractor, that relationship is presumed to be true unless

the evidence shows that the employer assumed such control.

12
(Citations and punctuation omitted.) Ga. Messenger Svc. v. Bradley, 311 Ga.App. 148,

149-150 (1) (715 SE2d 699) (2011). See also OCGA §§ 51-2-4 (“[a]n employer

generally is not responsible for torts committed by his employee when the employee

exercises an independent business and in it is not subject to the immediate direction

and control of the employer”), 51-2-5 (5) (“[a]n employer is liable for the negligence

of a contractor . . . [i]f the employer retains the right to direct or control the time and

manner of executing the work or interferes and assumes control so as to create the

relation of master and servant or so that an injury results which is traceable to his

interference”).

The test for determining whether an employer is exercising a degree of

control over an independent contractor’s work such that the law will

deem the independent contractor to be a servant of that employer—thus

making the employer vicariously liable for any wrongful acts committed

by the contractor—is whether the contract gives, or the employer

assumes, the right to control the time, manner, and method of the

performance of the work, as distinguished from the right to merely

require certain definite results in conformity with the contract. Put

another way, the test is essentially whether the contractor has a bona fide

existence apart from the employer or functions insteadas the employer’s

alter ego.

13
(Citation and punctuation omitted.) Boatner v.Show Media, 331Ga.App. 332, 335 (771

SE2d 40) (2015).

In this case, WellPath contracted with Lawrenz as an independent contractor

to assist health service administrators (“HSA”) in various Georgia prisons, including

Dooly, Pulaski, Wilcox, Rutledge, and Bainbridge Correctional, with the transition

over to WellPath. That contract, titled “Independent Contractor Agreement,”

provided that Lawrenz “agrees to provide on-site administrative support to medical

providers at Dooly State Prison in Dooly County, Georgia, and any other tasks or

duties assigned by [WellPath]” and that she would “provide no more than forty (40)

hours of Services per week, unless prior approval is given by an authorized

representative of the Company.” The agreement further provided that “[c]onduct

and control of the work to be performed under this [a]greement by Contractor lies

solely with Contractor.”

According to Lawrenz, she was an “ambassador” for WellPath and worked

when they needed assistance. That assistance was based upon the needs of the

facilities; Lawrenz “help[ed] [the facilities/prisons] become accustomed to the

WellPath way.” Lawrenz also did other, “different things” at the prisons such as

14
filling in for HSAs if necessary and helping the prisons prepare for upcoming audits

by the American Correctional Association. Lawrenz also participated in conference

calls between the HSAshe was working with at the respective prison andWellPath but

“was just on there to support [the HSA], so if [WellPath was] asking them to do

something and they didn’t understand how to do it, [Lawrenz] could help them.”

Lawrenzwould check in with her supervisor every couple of days to fill her in on what

was going on. She did not perform contract work for anyone else.

Lawrenz provided her own vehicle and insurance. She was paid by the hour

whenever she submittedinvoices andwould occasionallyworkovertime if needed, but

her payment was nottied to the completion of any particular task. She wasreimbursed

for all of her expenses, including mileage, food, and hotel, but not her cell phone, and

she had access to the company intranet and would log in with a password. Lawrenz

was treatedas an independent contractor fortax purposes and did not receive any kind

of employee benefits through WellPath; she had health insurance through her

husband, who was employed by WellPath as a facility administrator.

Lawrenz’s supervisor at WellPath averred that at the time of the accident,

Lawrenz was providing services to Pulaski State Prison pursuant to the independent

15
contractor agreement. Around that same time, Bainbridge Correctional reached out

toWellPathandrequestedadditional assistance, which Lawrenz independently agreed

to assume; she was not directed or ordered to do so by WellPath. According to the

supervisor, at the time of the accident, Lawrenz had finished assisting Bainbridge

Correctional and was returning to Pulaski State Prison on her own; she was not

directed to return there by WellPath. With regard to Lawrenz’s work in general, the

supervisor averred that WellPath did not require Lawrenz to appear or work at any

facility at any particular time. Rather, her daily work activities were left to her own

discretion; she could start and finish jobs on her own schedule, could refuse jobs when

they conflicted with her schedule or personal plans, and could take sabbaticals

“withoutrecourse.” According to the supervisor, “WellPath merely wanted to have

an ambassador at the facility as a contact point for any issues that arose in the

transition[,]” and did not monitor how Lawrenz performed her work “as long as she

got the work done.”

Because the written agreement specifically classifiesLawrenz as anindependent

contractor, Cox must point to some evidence showing that WellPath controlled the

time, manner, method, and means of the work that she did as an ambassador at the

16
prisons. See Ward v. DirecTV LLC, 342 Ga. App. 69, 71 (1) (801 SE2d 110) (2017).

Cox contends that WellPath exercised control over the time, manner, method, and

means of Lawrenz’s work because it was performed “under the direction of

WellPath” and “there was no particular skill required in the particular occupation.”

8

Cox also points to the fact that Lawrenz was paid an hourly rate and not by the task;

that she reported regularly to her supervisor; and that WellPath supplied all the tools

and the place of work. Pretermitting that Cox’s characterization of Lawrenz’s duties

on behalf of WellPath are not consistent with her deposition testimony, and that

Lawrenz testified that she was merely updating her supervisor when they spoke, there

is evidence to support the conclusion that Lawrenz was an independent contractor.

Lawrenz’s agreement with WellPath stated that she was an independent contractor

and there was testimony that WellPath did not monitor or control Lawrenz’swork or

8We note that in support ofthese assertions, Cox cites to Lawrenz’s deposition

where she testified that (1) after the accident, she may have spoken to her supervisor

and her supervisor’s supervisor and (2) if she had “a problem” while working, the

person to whom she would report that problem would depend upon whether the

“facility had a problem or if [she] had a problem.” Cox’s counsel sought to clarify

Lawrenz’s testimony as to what she meant as a “problem” and stated, “[i]f [she] had

a problem in [her] job.” Lawrenz seemed to agree with this clarification and

responded that she would go to her supervisor. These citations do nothing to prove

that WellPath controlledLawrenz’s work or that her work required no particular skill.

17
her schedule at the prisons. Indeed, Lawrenz testified that she worked when the

facilities needed assistance and worked within the facilities using their forms and

helping their HSAs as needed, and her supervisor testified that her daily work and

hours were left to her own discretion. Lawrenz also used her own vehicle, maintained

insurance on the vehicle, and did not receive employee benefits. See, e.g., Grange

Indemnity Ins. Co. v. BeavEx, Inc., 342 Ga. App. 601, 602 (804 SE2d 173) (2017)

(affirming grant of summary judgment to defendant on basis that the delivery driver

it hiredwas an independent contractor; contract statedthatdriverwas an independent

contractor, and driver used his own vehicle and maintained insurance, was required

to satisfy any specific conditions set by the customers, received a 1099 form and did

not receive employee benefits). On the other hand, there is also evidence to support

the conclusion that WellPath maintainedsufficient controloverLawrenz such that she

can be considered an employee. For example, under her written contract, Lawrenz

agreed to provide administrative support for the facilities and “any other tasks or

duties”assigned by WellPath, and also obtain approval forwork exceeding 40hours per

week. She alsoworked only for WellPath.Additionally, there is some dispute as to the

content of webinars that Lawrenz viewed and whether they were provided by

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WellPath or the respective prisons. “Under these circumstances, we cannot say that

the evidence is undisputed.” (Citation and punctuation omitted.) Boatner, 331 Ga.

App. at 335. See also Davis v. Beasley Timber Co., 241 Ga.App. 706, 708 (1) (527 SE2d

221) (1999) (evidence that timber company directed truck driver’s “timing and

destination of hauls” sufficient to find that driver was employee).Cf. Bradley, 311 Ga.

App. at 150(1)(affirming denial ofsummary judgment to appellant/messenger service

where genuine issues of material fact existed as towhether degree of control exercised

by appellant/messenger service over courier was such that courier was an employee

of appellant,rather than an independent contractor).Accordingly, the trial court erred

in granting summary judgment to Cox on his claim that WellPath was vicariously

liable for Lawrenz’s alleged negligence under the doctrine of respondeat superior.9

This conclusion renders moot WellPath’s contention that the trial court erred in

9 As for WellPath’s claim that the trial court erred in relying upon Lawrenz’s

deposition, which was taken before it was added as a party, “we need not reach this

issue, because our review of only the evidence taken by representatives of [Cox]

creates issues of material fact as to whether [Lawrenz] was an independent

contractor” or an employee. See Davis, 241 Ga. App. at 708 (1).

19
ruling that Lawrenz was acting within the course and scope of her employment with

WellPath at the time of the collision.10

Judgment reversed and caseremanded with direction.McFadden, P.J., and Markle,

J., concur.

10 As for any claim by Cox that WellPath made other admissions in judicio on

the issue of Lawrenz’s employment status, i.e., whether Lawrenz was an employee

acting within the scope of her employment at the time of the incident, we note that

such a statement “is not a statement of fact but is an opinion or conclusion as to law,

fact, or mixed question of both” as to Lawrenz’s status. Health Horizons v. State Farm

Mut. Auto. Ins. Co., 239 Ga. App. 440, 446 (a) (521 SE2d 383) (1999) (physical

precedent only) (rejecting defendant’s claim that statement in complaint that plaintiff

“furnishes health care services”was an admission in judicio that plaintiffwas engaged

in the practice of medicine). “[A]dmissions in judicio apply only to admissions of fact

and do not apply when the admission is merely the opinion or conclusion of the

pleader as to fact or law.” (Citations and punctuation omitted.) Id. See also

Sommerfield v. Blue Cross & Blue Shield of Ga., 235 Ga. App. 375, 377 (2) (509 SE2d

100) (1998) (part-time employee’s admission in his answer that he was “acting as an

employee” of the private employer “was not an admission in judicio; it was merely

an expression of [the employee’s] belief as to a legal conclusion”).

20