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Finding the Usual Suspects - Death Benefits Stemming from Third Party Criminal Action Against Employee

July 30, 2020 BY Nirav Patel

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When employers are faced with the unexpected death of an employee, they may be held liable under the Georgia Workers Compensation Act. However, for this to occur, the employee’s death must result from an accident “arising out of and in the course of employment.” Although the claimant bears the burden of proof to establish that the employee for whom they are claiming benefits did in fact die in the course of his or her employment, there exists a presumption that the death meets the criteria for coverage under workers compensation, if the death is unexplained and if the employee is found in a place where he might reasonably have been expected to be in the performance of his duties. Code, § 114-101 et seq. 

Nevertheless, when the accident that leads to the employee’s death occurs out of purely personal reasons, it is not compensable. O.C.G.A. § 34-9-1(4)(“‘Injury’ and ‘personal injury’ shall not include injury caused by the willful act of a third person directed against an employee for reasons personal to such employee”). Thus, a criminal act performed by a third party against the employee for personal motives unrelated to his employment, shall not be deemed compensable. However, simply because the death results from a criminal assault does not automatically prevent the injury from being accidental within the meaning of the Act. Hartford Accident & Indem. Co. v. Cox, 101 Ga.App. 789, 115 S.E.2d 452 (1960); see also Handcrafted Furniture, Inc. v. Black, 182 Ga.App. 115 (1987). 

In Handcrafted Furniture, the survivors of an employee who was killed by a co-owner of the business were awarded workers compensation benefits as the Appellate Court found that the death was motivated by the decedent’s failure to share his part of responsibilities and for not selling his 50% ownership of the business to his co-owner. Handcrafted Furniture, Inc., 182 Ga.App. 116. While the Employer/Insurer argued that the employee was killed for personal reasons, contending that the co-owner and the decedent’s wife were engaged in an extra-marital affair, the court found evidence of the defendant’s desire to gain complete control of the business as more convincing. Id. 

Moreover, the criminal assault can occur beyond the employer’s premises and even beyond the period of ingress or egress, which is considered compensable under the Act. While Georgia Workers Compensation Law does provide coverage for injuries that occur during a reasonable period of ingress or egress on the employer’s premises, an employee’s death may also be considered compensable if it occurs at a place where an employee reasonably may be in the performance of his duties and while he is fulfilling his duties or engaged in doing something incidental thereto. Peoples v. Emory University, 206 Ga. App. 213, 424 S.E.2d 874 (1993); see also Hardware Mut. Cas. Co. v. Sprayberry, 69 Ga.App. 196, 25 S.E.2d 74; General Fire & Cas. Co. v. Bellflower, 123 Ga.App. 864 (1971). 

In Bellflower, the widow of a bus driver was awarded benefits when the employee was accosted by a stranger and shot while returning to his place of lodging, during a work trip, after having visited a convenient place to eat. Id. The court found that the employee’s actions in going to and returning from a meal, were incidental to his employment, unless he stepped aside from his employment for personal reasons. Id. at 867. The could held that the employee’s acts of “ministration to himself should not-and we believe do not-take him outside the scope of his employment, so long as he performs these acts in a normal and prudent manner.” Id. at 867-68. However, the court distinguished its holding from United States Fidelity and Guaranty Company v. Skinner, 188 Ga. 823, 5 S.E.2d 9, where the employee went on an 18-mile trip to a seashore resort for the sole purpose of eating a seafood dinner and to see the ocean. Id. at 868. 

Nevertheless, the presumption that an employee’s death on the employer’s premises was employment related can be overcome by evidence that shows that the death was caused by the acts of a third person, who’s motive, and intent were unrelated to the decedent’s employment. Southern Bell Tel. and Tel. Co. v. Hodges, 164 Ga.App. 757 (1982). In Southern Bell, the decedent was shot and killed on the premises of his employer, while approaching the end of his shift. Id. However, based on the evidence within the claim that the unknown assailant “waited for the decedent in nearby woods adjacent to the employer's parking facility, smoked cigarettes, apparently sat on the ground, broke off branches to obtain a clear shot in the direction of the decedent's automobile,” and used the decedent’s own rifle, the Administrative Law Judge held that the perpetrator must have known the decedent, his habits, his work location, and had planned the circumstances. Id. at 757-58. Thus, it did not arise out of said employment and was the result of a willful act of a third person directed against the deceased for personal reasons. Id. at 758. 

However, the Appellate court in Southern Bell disagreed with the Administrative Law Judge’s findings and clarified that while the evidence “strongly indicates that the employee's death ‘might not’ be employment related[,]… in the absence of a finding as to the identity of the perpetrator and his motive [it] cannot find that the evidence shows that the death ‘did not’ arise out of the decedent's employment. Id. at 574 (citing Zamora, 162 Ga.App. 82, 290 S.E.2d 192, supra). Therefore, in order to overcome the presumption under Zamora for an employee’s death resulting from the criminal act of the third person on the employer’s premises and/or at a place where an employee reasonably may be in the performance of his duties, the motive, intent, and target must be personal to the known assailant and completely unrelated to the decedent’s employment. 

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. 

Editorial Board:

H. Michael Bagley
(Editor-in-chief)