Kelly v. China One Restaurant, Inc.

Banke, Judge. This is a suit by the appellant against a corporation and one of its officers to recover for personal injuries which arose out of the course of the appellant’s employment with the corporation. The appellant seeks damages based on the alleged negligence of the appellees in failing to provide a safe working place, as well as their wrongful failure to maintain workers’ compensation insurance. This appeal is from the grant of the appellees’ motion to dismiss the complaint for failure to state a claim. Held: 1. The trial court did not abuse its discretion in setting aside a pre-trial order, based on a finding that the appellees had not been notified of the date of the pre-trial hearing. This finding was supported by an affidavit from the court’s calendar clerk and is in fact not disputed by the appellant. 2. The court did not err in granting the motion to dismiss. A suit against an employer for negligence in causing an employee’s on-the-job injury is precluded by Code Ann. § 114-103, which makes recovery under the Workers’ Compensation Act the employee’s exclusive remedy in such a situation. The appellant might be entitled to recover against the individual officer at a later date for failure to maintain workers’ compensation insurance; however, the appellant must first obtain a valid award against the corporation from the Georgia Board of Workers’ Compensation, and it must be shown that the award cannot be enforced. See Samuel v. Baitcher, 247 Ga. 71 (274 SE2d 327) (1981). Judgment affirmed. McMurray, P. J., and Birdsong, J., concur.