Pogue v. Oglethorpe Power Corp.

• Decision Date: 09 May 1996
• Docket Number: No. 95-8084,95-8084
• Citation: 82 F.3d 1012
• Parties: David Keith POGUE; Denise Pogue, Plaintiffs-Appellants, v. OGLETHORPE POWER CORP.; Rome Employment Services, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1012

82 F.3d 1012

David Keith POGUE; Denise Pogue, Plaintiffs-Appellants, v. OGLETHORPE POWER CORP.; Rome Employment Services, Inc. Defendants-Appellees.

No. 95-8084.

United States Court of Appeals Eleventh Circuit.

May 9, 1996.

John S. Husser, Mundy & Gammage, PC, Cedartown, GA, Hardy Gregory, Jr., Davis, Gregory, Christy & Forehand, Cordele, GA, for Appellants.

S. Lester Tate, III, Cartersville, GA, for Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before KRAVITCH and CARNES, Circuit Judges, and HILL, Senior Circuit Judge.

CARNES, Circuit Judge:

David and Denise Pogue brought this negligence action against Oglethorpe Power Corporation ("Oglethorpe") and Rome Employment Services, Inc. ("RES") after David Pogue was seriously injured while working on a construction site. The district court granted summary judgment in favor of the defendants, and the Pogues appeal.

This diversity case presents the question of whether a Georgia "premise owner" is entitled to the statutory tort immunity provided by O.C.G.A. § 34-9-11 if the premise owner has purchased a "wrap-up" insurance policy to provide workers' compensation insurance coverage for all on-site contractors and subcontractors. Because no Georgia appellate court decisions provide clear, controlling guidance to resolve the question, we certify it to the Georgia Supreme Court.

I. BACKGROUND FACTS AND PROCEDURAL POSTURE

At the time of Pogue's injury, Oglethorpe was the majority owner of a construction project, known as the "Rocky Mountain Project" in Floyd County, Georgia. The purpose of the project was to construct a pump storage facility in which water could be collected from a series of reservoirs and released through a hydroelectric power house to generate power at peak electrical usage hours.

The principal contractor on the Rocky Mountain Project was Power Plant Constructors ("Power Plant"). At the time Oglethorpe contracted with Power Plant, Oglethorpe agreed to provide a "wrap-up" insurance policy to provide workers' compensation insurance coverage to all contractors and subcontractors on the construction site. Oglethorpe obtained such a policy from Argonaut Insurance Company, with Power Plant as the "named insured."

Oglethorpe's Corporate Safety and Loss Control Coordinator established a safety program for the Rocky Mountain Project, hiring four safety inspectors to represent Oglethorpe at the site. These safety inspectors were, technically, "leased" from RES, an employee leasing company that handled all administrative payroll and benefits functions for the safety staff in exchange for a fee paid by Oglethorpe. In all respects except for their payroll status, the four on-site safety inspectors functioned as Oglethorpe employees.

David Pogue began working for Power Plant in October 1991 as a cement finisher. When Pogue began working at the site, the powerhouse was about ten percent complete. The bottom level of what was to be a seventeen story concrete structure had been laid. As each concrete floor was poured, large openings were fabricated in the floors to accommodate vents, wiring, and other structural components. As a safety precaution, some, but not all, of the openings were covered with pieces of plywood or plywood reinforced with two-by-fours, or had temporary wooden railings placed around them. Cement finishers, like Pogue, had no involvement in the placement of these safety precautions.

On June 5, 1992, Pogue was working with another concrete finisher in the powerhouse. As was fairly typical throughout the powerhouse, there were several openings in the floor, some of which were covered and some of which were not. As concrete finishers, Pogue and the other man were responsible for patching any holes or rough spots in the walls of the room in which they were working. The work required the men to leave the room from time to time to replenish their supply of finishing concrete, which was mixed in another area. The pathway leading into and out of the room crossed an opening that was covered with plywood. Both men had, by necessity, walked on the plywood that covered this opening prior to Pogue's injury.

At the time of Pogue's injury, he was entering the room, having just replenished his supply of concrete. As he stepped onto the plywood in his path, it suddenly and unexpectedly gave way under Pogue's weight. Pogue fell forty-eight feet, sustaining serious and disabling injuries. Pogue is currently receiving workers' compensation benefits pursuant to his employment with Power Plant. The policy through which these benefits are being paid is the wrap-up policy purchased by Oglethorpe.

Pogue sued Oglethorpe and RES for negligent failure to provide a safe place to work and negligent inspection. Pogue's wife sued for loss of consortium. The district court granted summary judgment to Oglethorpe on the basis that Oglethorpe was immune from liability as one who "provides workers' compensation benefits to an injured employee," pursuant to O.C.G.A. § 34-9-11. The district court also granted summary judgment to RES on the ground that the Pogues had presented no theory that would entitle them to recover from RES. On appeal, the Pogues have abandoned their claim against RES, and the only matter before this Court is the propriety of the grant of summary judgment in favor of Oglethorpe.

II. ANALYSIS

The sole issue presented by this appeal is a question of law: Is a "premise owner" entitled to the statutory tort immunity provided by O.C.G.A. § 34-9-11 if the premise owner has purchased a "wrap-up" insurance policy to provide workers' compensation insurance coverage for all on-site contractors and subcontractors? The district court held that immunity applies in such a circumstance and granted summary judgment for Oglethorpe. We review the district court's grant of summary judgment, and its answer to questions of law, de novo. E.g., Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 996 (11th Cir.1990) (review of summary judgment); Swint v. City of Wadley, 51 F.3d 988, 994 (11th Cir.1995) (review of questions of law).

In Georgia, tort immunity is provided by statute to an employer and certain other entities in exchange for liability for the provision of workers' compensation benefits. The Georgia Workers' Compensation Act provides, in relevant part:

The rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee ... provided, however, that no employee shall be deprived of any right to bring an action against any third-party tort-feasor, other than an employee of the same employer or any person who, pursuant to a contract or agreement with an employer, provides workers' compensation benefits to an injured employee, notwithstanding the fact that no common-law master-servant relationship or contract of employment exists between the injured employee and the person providing the benefits....

O.C.G.A. § 34-9-11(a) (Supp.1995) (emphasis added).

Oglethorpe argues that, although it is not Pogue's employer, it is nonetheless entitled to tort immunity under O.C.G.A. § 34-9-11 as "one who provides workers' compensation benefits to an injured employee." Oglethorpe argues that it is entitled to this immunity under the plain language of the statute because it provided workers' compensation benefits to Pogue, albeit indirectly, by purchasing the wrap-up insurance policy from Argonaut Insurance Company that covered Pogue's employer, Power Plant.

Oglethorpe relies principally on Fred S. James & Co. v. King, 160 Ga.App. 697, 288 S.E.2d 52 (1981), to support its interpretation of the statute. In Fred S. James, an employee who was injured on the job sued the insurance broker that his self-insured employer had hired to administer its workers' compensation program. Id. The employee claimed that his injury resulted from a breach of the broker's contractual and common law duty to inspect and warn of unsafe workplace conditions and that, as a third-party tortfeasor, the broker was not immune from tort liability under the workers' compensation statute. Id. at 697-699, 288 S.E.2d at 52-53. The Georgia Court of Appeals rejected the employee's argument. It held that a broker or service agency that contracts with a self-insured employer to administer a workers' compensation program is the alter ego of the employer and is entitled to the same immunity as an insurer would be under the circumstances. Id. at 698-700, 288 S.E.2d at 53-54. The court explained:

We see no logical reason why a service agency which is responsible for the administration of a self-insured employer's workers' compensation program should not be included under the umbrella of immunity provided by the Act. By contract the service agency administers and facilitates the payment of benefits by the self-insurer, and anyone who "undertakes to perform or assist in the performance" of an employer's statutory duties under the Workers' Compensation Act should be immune from suit as a third party tortfeasor.

Id. at 700, 288 S.E.2d at 54 (quoting Allen v. Employers Serv. Corp., 243 So.2d 454, 455 (Fla.App.1971)).

Oglethorpe argues that, like the insurance broker in Fred S. James, it undertook to perform or assist in the performance of an employer's (Power Plant's) statutory workers' compensation duties by purchasing a policy of workers' compensation insurance to cover Power Plant's workers' compensation liability. Therefore, reasons Oglethorpe, it is entitled to the statutory tort immunity that the Georgia Court of Appeals extended to the broker in Fred S. James.

The Pogues argue that Fred S. James is distinguishable because: (1) unlike the employer in Fred S. James, Power Plant is not a self-insurer and (2) unlike the broker in Fred S. James, Oglethorpe is neither an insurer nor an administrative service company, but is merely a project owner that contractually assumed Power Plant's statutory...