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Released Opinions

May 25, 2016
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On May 23, 2016, the Supreme Court of Georgia released 16 opinions, of which two are within the scope of our coverage. Summaries of the opinions and cases are set forth below.

S15G1205 Fulton County Board of Education, et al. v. Thomas

In a unanimous opinion by Justice Hunstein, the Supreme Court of Georgia held that a claimant who sustained an employment-related injury was entitled to compensation calculated to include work in the same line of employment for another employer during the statutory 13-week time period. The Court affirmed the judgment of the Court of Appeals, explaining “[u]nder the circumstances presented here, we agree with the Court of Appeals’ conclusion….”

Thomas was a school bus driver, who also drove new school buses from Atlanta to other parts of the country during the summer of 2011. She was injured shortly after the next school year started. The question was how to calculate her “average weekly wage” for workers’ compensation purposes: Does it include the money she earned driving buses for another employer during the summer?

O.G.G.A §34-9-260(1) provides that the average weekly wage includes money earned “in the employment for which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks preceding the injury….” Here, Foster worked a bus driver for two employers sequentially during that 13 week period. While the Court of Appeals looked at the issue under its “concurrent similar employment” doctrine, the Supreme Court started from the premise that the statute used the word “employment,” not “employer.” It follows that the nature of the work controls.

The Supreme Court noted, “[T]he reported cases have, until now, uniformly involved circumstances in which the claimant was simultaneously employed with multiple employers at the time the injury occurred.” (Emphasis in original) It explained that the word “concurrent” does not appear in the statute, however, so there is “no basis in the text of the statute for requiring such simultaneity as an absolute condition to the doctrine’s application.” Instead, only “a ‘concurrence’ of similar jobs within the 13-week period” is required.

S15G1780 Georgia Department of Labor v. RTT Associates, Inc.

In a unanimous opinion by Justice Benham, the Supreme Court of Georgia held that a state agency’s actions in the course of administering a contract did not waive the State’s sovereign immunity. The Court reversed the decision of the Georgia Court of Appeals, which found that sovereign immunity had been waived by the agency’s conduct.

The 1983 Georgia Constitution waives the State’s sovereign immunity for “any action ex contractu for breach of any written contract … entered into by the state or its departments or agencies.” Ga. Const. of 1983, Art I, Sec. II, Par. IX (c). The Department of Labor and RTT entered into such a written contract that contained, among other things, provisions requiring that changes be in writing and  integrating all but RTT did not perform its obligations before the contract time expired. The Department did not terminate the contract immediately, but it ultimately did so and claimed against RTT’s performance bond. RTT filed suit for breach of contract, the trial court ruled in favor of the Department, and the Court of Appeals reversed.

The Supreme Court held that the Department’s conduct did not result in a waiver of sovereign immunity: “Even if the parties’ conduct after the expiration of the contract could be found to demonstrate an agreement between the parties to perform under the original contract, as a matter of law neither that conduct nor the internal documents created by DOL after the contract expired establishes a written contract to do so. Without a written contract, the state’s sovereign immunity from a contract action is not waived.”

The Court noted that the Court of Appeals erred in applying contractual cases involving private parties to state contracts. Insofar as a written contract is required for a waiver of sovereign immunity, so is a written contract modification. In addition, the Court disapproved or distinguished other cases on which RTT relied.

The Court explained that sovereign immunity and the constitutional requirement that state contracts and their modifications be in writing was designed to protect the state’s finances and to preclude the state from being assessed or exposed to unanticipated damages. As a result, the conduct of state employees, particularly after the expiration of the contract term, was not a basis for finding a waiver of the state’s sovereign immunity.

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