September 02, 2010 BY Taylor Poncz
Driving Miss Conduct: A Glance At The Georgia Workers' Compensation Exclusion For Injuries Caused By An Employee's Traffic Violation
As a general rule, under O.C.G.A. § 34-9-17(a), injured employees are precluded from receiving workers’ compensation benefits from an otherwise compensable injury when the employee’s injury is caused by willful misconduct. However, the employer/insurer has the burden of proving that the preponderance of the evidence shows that the willful misconduct at the time of the accident was the proximate cause of the employee’s injury. Thus, the question often arises, “What type of conduct constitutes willful misconduct?”
Willful misconduct is defined by Georgia courts as all conscious or intentional violations of non-discretionary laws or rules of conduct, as distinguished from inadvertent, unconscious or involuntary violations. Accordingly, mere violations of instructions, rules, ordinances and statutes are not, without more, as a matter of law, acts of willful misconduct. Instead, such violations constitute mere negligence, and no matter how great, negligence does not constitute willful misconduct which will bar recovery under workers’ compensation.
The principle of intent behind the willful misconduct exclusion was exemplified by the court in Travelers Insurance Company v. Gaither, 148 Ga. App. 251 (1978), when it gave the example of an employee injured while driving 26 miles per hour in a 25 miles per hour zone. In that scenario, the employee exceeded the speed limit, however, the court cautioned that a per se finding of willful misconduct would be inconsistent with the purpose of the Act.
Instead, a violation of a statute is only a bar to recovery when the employee’s violation is of a quasi-criminal nature. The willfulness element contemplated by O.C.G.A. § 34-9-17(a) encompasses the idea of premeditation, intentional wrongdoing, and deliberate disobedience, more than the performance of a thoughtless act.
A common scenario that arises in workers’ compensation is accidents which result from an employee’s traffic violation while in the course and scope of employment. The Georgia courts have taken a case by case approach in determining whether workers’ compensation claims will be denied based upon traffic violations. InAetna Life Ins. Co. v. Carroll, 169 Ga. 333 (1929), the Supreme Court of Georgia held that the willful and conscious doing of an act which is in violation of a penal statute constitutes willful misconduct and when the violation of the statute is the proximate cause of the employee’s injury, then compensation is barred. The test of misconduct has been determined as not whether the employee did an act with the intent of violating the statute, but whether he willfully and consciously did the act which is in violation of the statute. Liberty Mutual Insurance Company v. Bray, 136 Ga. App. 587 (1975). In Bray, the Court of Appeals found that recovery was precluded for an employee’s injuries sustained when he crossed a street without using the crosswalk and testified that he consciously chose not to cross at the crosswalk. In that case, the court found that the employee had willfully violated a statute that created a duty upon the employee to yield to motorists when crossing the street without using a crosswalk, which was punishable by a misdemeanor. Thus, injuries sustained as a proximate result of his violation were not recoverable. Georgia courts have clarified the intent element, finding that an employee does not have to have the intent to injure himself when violating the statute. Rather, he must only have the intent to do the act which violated the statute. Pacific Indem. Ins. Co. v. Eberhardt, 107 Ga. App. 391 (1963).
Benefits have also been awarded despite traffic violations, for example, where the court found that an employee’s failure to stop at a railroad crossing was negligent and not a willful violation of the statute. Argonaut Ins. Co. v. Almon, 120 Ga. App. 869 (1969). In Almon, the Administrative Law Judge awarded benefits after finding no evidence of willful misconduct as there was conflicting evidence between the trainmen and the policeman who investigated the scene as to whether or not there was mechanical failure with the employee’s vehicle. Similarly, where a taxicab driver fell asleep or lost consciousness before driving his vehicle into a moving a train, and he testified that he was unaware of his actions prior to the accident, benefits were granted because the employer could not meet its burden to show that the injury was caused by a willful violation of a statute requiring the employee to stop and wait until the train had passed the intersection. Beck v. Brower, 101 Ga. App. 227 (1960).
In instances where an employee is speeding at the time of an accident resulting in injury, Georgia courts consider the speed limit and extent of the violation of the speed limit in determining whether the violation was willful or wanton conduct. Adams v. U.S. Fidelity & Guaranty Co., 125 Ga. App. 232 (1971). For example, where an employee driving a heavily loaded truck greatly exceeded the 35 mile per hour speed limit to the point that his truck became out of control, and there was evidence that the injury sustained was solely caused by the employee’s speeding, then the employee could not recover. Hall v. Kendall, 81 Ga. App. 592 (1950). However, where the evidence showed that an employee believed that it was clear for him to pass a slower moving vehicle, that he was at a place on the street where he was lawfully authorized to be and that he was unaware of an oncoming vehicle in the next lane which he entered in order to pass the slower moving vehicle, the employee was not guilty of willful misconduct sufficient to deny recovery for the employee’s injury. Reid v. Raper, 86 Ga. App. 277 (1952).
It is clear in Georgia that it is unclear what traffic violations will operate to preclude recovery for an otherwise compensable work injury. However, there is no dispute that recovery will not be denied unless an employer can prove the employee willfully committed the act which was in violation of the statute, and that the violation was the proximate cause of any injury. In a scenario where an employee fails to wear his seatbelt and is injured in a car accident, the employer must prove that the employee willfully chose not to wear his seatbelt, which could be rather difficult to prove absent an admission by the employee or an eye witness account of the employee’s deliberate refusal to wear his seatbelt. Furthermore, the employer must then show that the failure to wear a seatbelt was the proximate cause of the employee’s injury. This places a fairly large burden on the employer to prove willful misconduct. However, when the evidence does present itself, a denial of an otherwise compensable injury when the employee’s injury is caused by willful misconduct can be a viable defense.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley