A new Georgia Supreme Court decision has made it easier to defend third-party tort actions involving injured employees by reducing the recoveries when employer negligence contributes the work-related injury. Walker v. Tensor Mach., Ltd., 2015 WL 7135149 (Ga. 2015).
Jock L. Walker was injured at work in August 2010 while he operated a machine that had been designed and manufactured by Tensor Machinery, Ltd. and Tensor Fiber Optic Technologies, Ltd. (collectively, “Tensor”). After receiving workers’ compensation benefits, Walker sued Tensor, alleging that it negligently failed to warn him of safety-related defects in the machine. Tensor then gave notice under O.C.G.A. § 51-12-33 that it intended to ask the trier of fact in this case to assign some responsibility for Walker’s injuries to his employer. In response, Walker filed a Motion in Limine to exclude all evidence concerning fault on the part of his employer, asserting that § 51-12-33 does not allow a plaintiff to apportion fault to a non-party employer that has immunity from liability in tort by virtue of the exclusive remedy provision of the Workers’ Compensation Act, O.C.G.A. § 34-9-11. The employee, after settling workers’ compensation benefits with the employer, brought an action against the designer and manufacturer of the machine that allegedly caused the workplace injury for negligent failure to warn of defects. The United States District Court for the Northern District of Georgia certified the following question to the Supreme Court.
Does § 51-12-33(c) allow the jury to assess a percentage of fault to the non-party employer of a plaintiff who sues a product manufacturer and seller for negligence in failing to warn about a product danger, even though the non-party employer has immunity under § 34-9-11?
The Supreme Court answered this novel question of Georgia law in the affirmative, declaring that a jury may now assess a percentage of fault to a non-party employer that would otherwise have immunity under the Workers’ Compensation Act.
This ruling has been years in the making. In 2005, a law was passed giving juries in civil lawsuits the ability to apportion fault – and damages – to non-parties of the litigation. This potentially reduces the liability of defendants.
A few months ago, the Supreme Court, in Zaldivar v. Prickett, 297 Ga. 589, 774 S.E.2d 688 (2015), held that O.C.G.A. § 51-12-33(c) – which directs the trier of fact in certain cases to “consider the fault of all persons or entities who contributed to the alleged injury or damages” – refers to the “fault” of “all persons or entities who have breached a legal duty in tort that is owed with respect to the plaintiff, the breach of which is a proximate cause of the injury sustained by the plaintiff, regardless of whether such tortfeasor would have actual liability in tort to the plaintiff.” The Court said there is no compelling reason to treat non-party employers with immunity under the Workers’ Compensation Act differently than non-parties with other defenses or immunities against liability.
The effect of this ruling may have a profound impact on workers’ compensation subrogation cases involving employer negligence. An employer’s negligence will now be a factor in third-party cases. Even though the employer cannot be sued directly by its employee due to exclusive remedy provisions that bar workers from suing employers for work-related injuries, defense counsel will routinely push to add the employer as a non-party defendant to potentially shift liability, much as it does now in states like Illinois, where every argument for employer fault imaginable has become commonplace in third-party litigation. This apportionment of damages prevents a plaintiff/employee from collecting that portion of damages which is attributable to his or her employer, even though the employer won’t be responsible for paying it.
In Walker, the question was whether an employer can be considered a non-party even though it has immunity and can’t be sued by the employee in the first place – regardless of negligence. The Court held that it can.
If you have any questions regarding this article or subrogation in general, please contact Gary Wickert at [email protected].