A Georgia appellate court ruled that a man who was paralyzed when a tree branch hit his neck is not entitled to coverage under a CGL policy. The case is Tyson v. Scottsdale Indemnity Co., 805 S.E.2d 138 (Ga. Ct. App. 2017).

Howard Tyson worked part-time for Shellmar Tree Service, a company owned by Hank Rowe, removing trees and “tree debris” from various worksites; when and how much work Tyson did for Shellmar depended on the amount of work available from Rowe. One day, Tyson was in the yard of a worksite on a break while Rowe and other workers cut down the last tree at that worksite. Tyson, in compliance with the job requirements, was standing a safe distance from the tree when a large tree branch hit him in the neck, rendering him a quadriplegic.

At the time of the accident, Shellmar was insured by a CGL policy from Scottsdale Indemnity. The policy contained an exclusion for “an employee, leased worker, temporary worker, or volunteer worker of any insured [or]or any contractor, subcontractor, sub-subcontractor or anyone hired or retained by or for any insured if the injury arises out of and in the course of their employment or retention.” (emphasis added).

Tyson filed a claim with Scottsdale, but it was denied based on the policy exclusion for bodily injury arising out and in the course of employment. Tyson sued Rowe for negligence, strict liability, and breach of contract; Rowe filed a third-party complaint against Scottsdale for wrongful denial of Tyson’s claim. The trial court awarded summary judgment to Scottsdale; Tyson and Rowe appealed.

Tyson was not a Shellmar employee, but the record clearly showed that Tyson had been retained by Rowe on behalf of Shellmar to clean tree debris at the worksite on the day Tyson was injured. During his testimony, Tyson stated that “Tyson said in his testimony, “he was being paid to work at the time the tree fell” (emphasis added). Having answered this question, the court needed to determine whether Tyson’s injuries both “arose out of and in the course of his employment or retention.”

Under Georgia workers compensation law, “an injury to an employee occurring during working hours and on the employer's premises ordinarily and presumptively will be considered as arising out of and in the course of employment” (Miles v. Brown Transp. Corp., 294 S.E.2d 734 (Ga. Ct. App. 1982), emphasis added).

The court acknowledged that Tyson was on a break and standing a “safe” distance from the tree as the job required when the tree branch hit his neck and paralyzed him. Since Tyson was standing away from the tree in compliance with the job requirements, it established the causal connection necessary to determine that his injuries “arose out of his employment or retention with Shellmar.” The yard where he was standing was part of the job site for that day, so he was injured “in the course of his employment or retention.” It was irrelevant that he was not actively engaged in a work activity when the tree fell.

The verdict in favor of Scottsdale was affirmed.

Editor’s Note: It’s important to remember that the policy at issue in this case was a CGL, or commercial general liability, policy, not a workers compensation policy. CGL policies provide coverage for the company or business, not the employees.

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In the Course of Employment

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