Case Law Update: The Georgia Supreme Court Confirms That a Non-Party Employer May Be Apportioned Fault

The Supreme Court of Georgia in the recent opinion Walker v. Tensor Mach. Ltd., No. S15Q1222, 2015 WL 7135149, (Ga. Nov. 16, 2015), continued to expand the apportionment law, this time to nonparty employers with immunity under the Workers’ Compensation Act. The question certified to the court was whether or not the Georgia Apportionment Statute at O.C.G.A. § 51-12-33 (c) allows the jury to assess a percentage of fault to the non-party employer of a plaintiff who sues a product manufacturer or seller for negligence in failing to warn about a product danger, even though the non-party employer has immunity under O.C.G.A. § 34-9-11. The court answered in the affirmative.

Jock 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 reaching a settlement with his employer for 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 jury 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 O.C.G.A. § 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. Walker, No. S15Q1222, 2015 WL 7135149, at *1.

The court reasoned a meritorious affirmative defense or immunity may cut off liability, [but] a tortfeasor is still a tortfeasor, and nothing about his defense or immunity means that he was not at fault by his commission of a tort that was the proximate cause of the plaintiff’s injury. Immunity from liability does not prevent an immune party from acting or omitting to act. Rather, immunity shields that party from any liability stemming from that act or omission. There is nothing logically or legally inconsistent about allocating fault but shielding immune parties from liability for that fault. And there is no reason to imagine that the Legislature did not intend fault to be allocated against immune parties, insofar as that allocation can be of no detriment to those parties. 2015 WL 7135149, at *2-3 (cites omitted). (“[A]llocating fault to an employer does not destroy, or even affect, the employer’s immunity from suit. Immunity does not mean that a party is not at fault; it simply means that the party cannot be sued.” (Citation and punctuation omitted)); Mills v. MMM Carpets, 1 Cal. App. 4th 83, 1 Cal. Rptr. 2d 813, 818 (1991) (“the negligent employer’s fault in a case like this one is measured, not in order to impose tort liability on it, but to determine the comparative fault and commensurate liability of a defendant in the action”). Walker, 2015 WL 7135149, at *3.

Nevertheless, Walker argued that the allocation of fault under O.C.G.A. § 51–12–33(c) to nonparty employers with immunity under the Workers’ Compensation Act would upset the careful balance that the General Assembly struck in the Act between the respective interests of employers and employees, and for that reason, Walker urged, O.C.G.A. § 51–12–33(c) could not reasonably be understood to permit such an allocation of fault. The court disagreed stating that the General Assembly determined that the exclusive remedy provision and limited benefits of the workers’ compensation system, O.C.G.A. § 34–9–11, are “the quid pro quo for workers receiving a guarantee of prompt benefits for work-related injuries without regard to fault or common-law defenses and without the delay inherent in tort litigation.” Doss v. Food Lion, 267 Ga. 312, 313(2), 477 S.E. 2d 577 (1996). “Allocating fault to an immune employer does not disturb this quid pro quo relationship between employee and employer or the legislative policy underlying it. A plaintiff may still obtain benefits, without having to prove the employer’s negligence, and the employer is still immune from liability.” Ocasio, 33 A. 3d at 1147(II)(A)(3)(a). Walker, 2015 WL 7135149, at *3.

There is nothing inherently fair about a defendant who is, for example, 10% at fault paying 100% of the loss. Nor would the assignment of fault to a non-party employer eviscerate the role that subrogation plays in the workers’ compensation system. 2015 WL 7135149, at *4.

Lastly the court also rejected Walker’s argument that the allocation of fault to a non-party employer under O.C.G.A. § 51–12–33(c) would expose employers to new and substantial litigation costs, against which, he said, they previously were shielded by virtue of their immunity from tort liability under the Workers’ Compensation Act. Under the exclusive remedy provisions of the Workers’ Compensation Act, the employer entirely avoids having to defend against tort litigation and remains immune from tort liability regardless of any assignment of fault pursuant to O.C.G.A. § 51–12–33(c). No doubt, an employer may have to respond to requests for discovery that are relevant to its fault with respect to an injury to its employee, but employers long have been subject to discovery for other purposes in cases in which employees have been injured on the job. To begin, an employer is always subject to the discovery procedures of the Civil Practice Act in any administrative proceeding regarding a claim for workers’ compensation benefits. O.C.G.A. § 34–9–102(d). More significant, even before enactment of O.C.G.A. § 51–12–33(c), employers already were subject to non-party discovery, see O.C.G.A. § 9–11–34(c), related to claims by an employee against other alleged tortfeasors for workplace injuries, such as Walker’s product liability claims against Tensor. Regardless of whether any fault could be assigned to the employer, parties to such cases might be expected to demand discovery of business records and other documents of an employer, depositions and trial testimony of managers and other employees, and perhaps access to the workplace for evaluation and testing of equipment. In a products liability action, those discovery requests could have numerous purposes other than to discover fault on the part of the employer: supporting or refuting the elements of the employee’s tort action, as well as the potential defenses available to the non-employer defendant against the employee’s action, including the statute of repose, legal accident, contributory negligence, assumption of the risk, federal preemption, and the learned intermediary rule. See, e.g., Charles R. Adams III, Ga. Law of Torts §§ 25:8 through 25:10 (database updated December 2014); J. Kennard Neal, Ga. Products Liability Law, Chap. 11 (4th ed., database updated April 2015). The wide range of facts that the parties may seek to discover from the employer could include the dates that an allegedly defective product was delivered and installed in the workplace, warnings and directions about the use of the product, the maintenance history and any modifications of the product, other incidents concerning the product of which the employee would or could have been aware at the time of his injury, the work and disciplinary history of the employee, his training and experience with the product at issue and similar products, any misuse of the product by the employee, his condition just prior to the injury, and the notice that he provided about his injury. The allocation of fault to nonparty employers simply adds one additional subject about which employers may be subject to nonparty discovery. Walker, 2015 WL 7135149, at *6.

Accordingly, the court saw no reason to limit their interpretation of O.C.G.A. § 51–12–33(c) and prohibit a trier of fact from assigning fault to a non-party employer that has immunity under the exclusive remedy provisions of the Workers’ Compensation Act. As they explained in Zaldivar v. Prickett, 297 Ga. 589, 774 S.E.2d 688 (2015),“the apportionment statute permits consideration, generally speaking, of the ‘fault’ of a tortfeasor, notwithstanding that he may have a meritorious affirmative defense or claim of immunity against any liability to the plaintiff.” 297 Ga. at 598(1), 774 S.E.2d 688 (footnote omitted). “[W]e do not conclude that immune employers should be treated differently than other immune tortfeasors.” Ocasio, 33 A.3d at 1148(II)(A)(3)(a). The court, therefore, answered the certified question in the affirmative. Walker, 2015 WL 7135149, at *5-6.

Molly O’Connor