Just when you thought workers’ compensation subrogation in this country’s most difficult state could not get any more difficult, it does. In Zaldivar v. Prickett, 774 S.E.2d 688 (Ga. 2015), Prickett sued Zaldivar for injuries resulting from a 2009 work-related auto accident. The defendant blamed Prickett’s employer, Overhead Door Company, which was not a party to the lawsuit, for negligently entrusting the vehicle to Prickett, and argued the employer should bear some of the responsibility for the accident, despite being protected from suit by the Georgia Exclusive Remedy Rule.
Georgia’s “apportionment statute,” O.C.G.A. § 51-12-33, requires the jury to apportion fault among all of those who “contributed to” the accident, including both parties and non-parties. The statute then requires the jury to apportion any award of damages among the defendants with liability, based on its assigned percentage of fault. Zaldivar wanted to assign blame to Overhead Door Company for plaintiff Prickett’s injuries and Prickett objected. Prickett argued that the statute permitted attributing “fault” to a non-party only to the extent that the non-party committed a tort that was a proximate cause of the plaintiff’s injury.
The Georgia Supreme Court held that a non-party can have “fault” that a jury should consider, notwithstanding that the non-party has a valid defense or immunity as against its own liability to the plaintiff. This includes an employer otherwise protected from liability by the exclusive remedy protection provided by the Georgia Workers’ Compensation Act. The relevant subsection, O.C.G.A. § 51-12-33(c), requires the jury to “consider the fault of all persons or entities who contributed to the alleged injury or damages,” meaning all persons or entities who have breached a legal duty in tort owed to the plaintiff, the breach of which is a proximate cause of the plaintiff’s injury.
An employer which is apportioned some percentage of fault does not directly owe any money to the plaintiff, but the employer’s presence on the special verdict benefits defendants by giving jurors somewhere else to point their fingers for blame and by potentially reducing a named defendant’s financial obligation. At the same time, it could make workers’ compensation subrogation more difficult. Only those non-parties who have breached a legal duty to the plaintiff can be considered for apportionment purposes.
The decision also clarified negligent entrustment law in Georgia. Some older case law indicated that negligent entrustment of a motor vehicle or other instrumentality can never be a proximate cause of an injury to the person to whom the instrumentality was entrusted. Ridgeway v. Whisman, 435 S.E.2d 624 (Ga. App. 1993). The reason is that the driver’s own negligence breaks the causal connection between the entrustor’s negligent act and the driver’s injury. However, the recent decision in Zaldivar held that this approach to negligent entrustment was wrong. Assuming the elements of negligent entrustment are proven, the court in Zaldivar held that one who negligently entrusts a vehicle to another should anticipate the driver might act negligently, so the driver’s negligence cannot be said to break the causal connection between the negligent entrustment and the driver’s injury. Although generally comparative negligence would be a defense to a lawsuit by the driver who was negligently entrusted with the vehicle, such a suit would not automatically fail as a matter of law. Zaldivar, 774 S.E.2d at 698.
The decision does not change the fact that the Exclusive Remedy Rule prevents an injured person from suing a negligent employer or co-worker who contributed to causing an injury. It doesn’t change the fact that a non-immune tortfeasor-defendant cannot join the employer or a co-employee as a party in the negligence suit. J.R. Mabbett & Son, Inc. v. Ripley, 185 Ga. App. 601 (1988). Zaldivar, however, now permits that the fault of non-parties, including the employer, can be apportioned out of any award against the defendant. This allows any judgment against the defendant in a proper case to be reduced by the percentage the jury finds others to have contributed. While this doesn’t directly reduce a workers’ compensation carrier’s subrogation recovery, it will make it harder for the employee to be made whole, which is a complete bar to workers’ compensation subrogation in Georgia.
Everybody except the workers’ compensation carrier won something in this decision. Defense counsel and plaintiffs’ counsel received needed clarity on the non-party apportionment statute. At the same time, the decision provides litigants some clarity on negligent entrustment claims. Subrogated employers and workers’ compensation carriers may be the only pure losers. If an employer’s negligence can reduce a plaintiff’s overall recovery, the chance the plaintiff is made whole by a verdict in Georgia (a state where the Made Whole Doctrine is codified into the Workers’ Compensation Act) is even less than under prior law. As of this decision, it does not appear that the percentage of fault attributed to the employer directly reduces the subrogation recovery of the employer or its subrogated workers’ compensation carrier.
If you have any questions regarding Georgia compensation subrogation apportionment, or subrogation in general, please contact Gary Wickert at [email protected].