Two insurance carriers filed a declaratory judgment action to determine their responsibilities in connection with a lawsuit arising out of a forklift accident. The trial court granted summary judgment in favor of the carriers. The two parties seeking coverage filed separate appeals. Those appeals have been consolidated for our review. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 c. We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 1 577 SE2d 564 2003.
Construed in favor of the nonmovants, the facts are as follows: To keep him out of trouble during the summer and teach him responsibility, Greg Jones hired his tall and strong teenage stepson, Antonio Benson, to work as a laborer for Kay-Lex Company unloading trucks at a food service warehouse. These laborers were known as “lumpers,” and Kay-Lex has purchased workers’ compensation insurance for them since 1998. It is undisputed that Kay-Lex employed Benson during the summers of 2001 and 2002. And Jones, who was the “sole supervisor for Kay-Lex’s operations” at the warehouse and who had authority to hire and fire laborers, brought Benson —then age 15 —back to work at the beginning of the summer of 2003. But that year, Jones’s boss, Johnny Bunton —the sole proprietor of Kay-Lex, changed his mind about Benson; and when he saw Benson on the premises two or three times that summer, he expressly forbade Jones from employing Benson because he was too young. Nevertheless, Benson continued to come to work, and Jones concealed from Kay-Lex the compensation he paid to Benson for his work, part of which Jones paid in cash and part of which he paid by personally cashing a check improperly made out to a former employee. Unlike the earlier years, Benson did not receive a tax form showing compensation for 2003. In all other aspects, however, Benson functioned as a lumper or part-time lumper. At the time of the accident, he was wearing an orange Kay-Lex safety vest and in his pocket he had a purchase order, which tells what truck he had unloaded.
