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Court of Appeals Wrestles with Exclusive Remedy of Temporary Employee of Subcontractor

CPPI was hired by Savannah-Chatham County Schools to build a school. The construction management agreement provided that CPPI would complete the work in accordance with all applicable laws, including OSHA and Department of Labor rules and regulations. In the scope of that work, CPPI contracted with Tony’s Jons to provide portable toilets for the construction site. Brack was hired through a temp agency to work for Tony’s Jons. Brack placed six toilets at the site and cleaned and maintained them. On April 10, 2015, however, Brack was injured at the site while pumping out a toilet. He sued CPPI for negligence and various damages.

CPPI moved for summary judgment, arguing that it was Brack’s principal contractor and statutory employer and therefore O.C.G.A. §§ 34-9-11 provided it with tort immunity. If true, workers’ compensation would be Brack’s exclusive remedy.

Brack argued that his job duties under the contract between Tony’s and CPPI, which consisted of providing toilets and cleaning them once a week, were not the subject matter of the contract and, therefore, Tony’s was not a subcontractor for the purposes of the statute. If correct, that would take CPPI out of the direct line of employers and remove tort immunity.

The Court of Appeals did not agree with Brack. Because the contract called for work to be completed in accordance with the law and because OSHA requires toilets to be provided at jobsites, CPPI was contractually obligated to provide a safe workplace and follow OSHA guidelines. Therefore, the provision and weekly cleaning of toilets by Brack was in furtherance of the construction agreement signed by CPPI and the school system.

There was a single dissent, noting that the Supreme Court has long held that a “party’s mere provision of an ancillary good or service at a construction site does not transform the contractor obtaining the benefit of that good or service into a ‘statutory employer’ sheltered by tort immunity.” Judge Colvin also noted that there was no contract between CPPI and Tony’s Jons, only a simple invoice showing Tony’s undertaking to service its own leased toilets.

This is an interesting case that puts an emphasis on employers, including contractors and subcontractors, to draft clear and concise contractual terms so that protracted litigation does not follow. The opinion can be found at


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