Walker v. Tensor Mach., Ltd., S15Q1222.

• Decision Date: 16 November 2015
• Docket Number: No. S15Q1222.,S15Q1222.
• Citation: 298 Ga. 297,779 S.E.2d 651
• Parties: WALKER et al. v. TENSOR MACHINERY, LTD. et al.
• Court: Georgia Supreme Court

298 Ga. 297

779 S.E.2d 651

WALKER et al.

v.TENSOR MACHINERY, LTD. et al.

No. S15Q1222.

Supreme Court of Georgia.

Nov. 16, 2015.

Brian Scott Parker, The Parker Firm, LLC, Alpharetta, Thomas Charles Blaska, Dana J. Norman, Thomas C. Blaska, The Blaska Law Firm, Atlanta, for appellant.

Jason Daniel Hergenroether, Matthew Glenn Moffett, Gray, Rust, St. Amand, Moffet & Brieske LLP, Atlanta, for appellee.

Robin Frazer Clark, Robin Frazer Clark, P.C., James Nicholas Sadd, Edward Malcum Wynn, III, Slappey & Sadd, LLC, Madeline Elizabeth McNeeley, Darren Wade Penn, Yvonne S. Godfrey, Harris Penn Lowry LLP, Atlanta, for amicus appellant.

Matthew T. Nelson, Warner, Norcross & Judd, LLP, Grand Rapids, Dara Deann Mann, Mckenna Long & Aldridge LLP, Atlanta, Robin S. Conrad, Dentons US LLP, Washington, DC, James Randolph Evans, Dentons US LLP, Atlanta, for amicus appellee.

BLACKWELL, Justice.

Just a few months ago, we held in Zaldivar v. Prickett, 297 Ga. 589, 774 S.E.2d 688 (2015), that OCGA § 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." Zaldivar, 297 at 600(1), 774 S.E.2d 688 (footnote omitted). "[T]he 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." Id. at 598(1), 774 S.E.2d 688 (footnote omitted). Before we issued our decision in Zaldivar, the United States District Court for the Northern District of Georgia certified the following question to us:

Does OCGA § 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 OCGA § 34–9–11 ?

Unless there is a compelling reason to treat nonparty employers with immunity under the Workers' Compensation Act differently than nonparties with other defenses or immunities against liability, Zaldivar requires an affirmative answer to the certified question. We see no such compelling reason, and so, we adhere to Zaldivar and respond to the District Court in the affirmative.

We begin with a brief summary of this litigation. 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 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.¹ Tensor then gave notice under OCGA § 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 OCGA § 51–12–33 does not allow a plaintiff to apportion fault to a nonparty employer that has immunity from liability in tort by virtue of the exclusive remedy provision of the Workers' Compensation Act, OCGA § 34–9–11.

Although our opinion in Zaldivar did not focus on this issue, we did have occasion to speak of it in our opinion. The defendant in that case, like Tensor, sought to assign some responsibility to the plaintiff's employer, and we noted that if the plaintiff had sued his employer (for negligent entrustment),

he might well have lost as a result of comparative negligence ... or as a result of some other affirmative defense (such as the exclusive remedy provisions of the Workers' Compensation Act ). But an affirmative defense or immunity does not eliminate "fault" or cut off proximate cause, it only bars liability notwithstanding that the "fault" of the tortfeasor was a proximate cause of the injury in question.

Zaldivar, 297 Ga. at 604(2), 774 S.E.2d 688 (emphasis supplied). Moreover, two of the foreign cases upon which we relied in Zaldivar specifically approved consideration of the nonparty employer's fault under similar apportionment statutes notwithstanding the exclusive remedy provisions of the applicable workers' compensation statutes. Id. at 599(1), 774 S.E.2d 688 (citing Williams v. White Mountain Constr. Co., 749 P.2d 423, 429(III) (B) (Colo.1988), and Sedgwick Ins. v. CDS, Inc., 47 F.Supp.3d 536, 549 (B)(2) (E.D.Mich.2014)). Georgia commentators have drawn similar conclusions. See Franklin E. Jenkins III & Wallace Miller III, Ga. Automobile Insurance Law § 48:3(i) (2014–2015 ed.) ("[t]he rationale in Barnett v. Farmer, [308 Ga.App. 358, 362(2), 707 S.E.2d 570 (2011) (physical precedent that Zaldivar, 297 Ga. at 598(1), 774 S.E.2d 688 —which also cited this treatise—relied on as persuasive Georgia authority) ] ... should extend to virtually any form of tort immunity, including ... workers' compensation as [an] exclusive remedy"); Thomas A. Eaton, Who Owes How Much? Developments in Apportionment and Joint and Several Liability under OCGA § 51–12–33, 64 Mercer L. Rev. 15, 33, n. 104(IV) (A) (2012) ("employees who are injured on the job and bring tort actions against third parties will now have their recovery against third parties reduced by any percentage of fault assigned to the plaintiffs' employers" even though their liability is limited by workers' compensation) (quoted in Jenkins & Miller, supra at 48:3(i), n. 38).

Other jurisdictions have recognized that "[i]t is accepted practice to include all tortfeasors in the apportionment question. This includes ... persons alleged to be negligent but not liable in damages to the injured party such as in the third-party cases arising in the work[ers'] compensation area." Sullivan v. Scoular Grain Co. of Utah, 853 P.2d 877, 882 (I)(D) (Utah 1993) (quoting Carroll R. Heft & C. James Heft, Comparative Negligence Manual § 8.100, at 14 (rev. ed.1992)). See also Fabre v. Marin, 623 So.2d 1182, 1187 (Fla.1993) (quoting an earlier edition of the same treatise); 57B Am.Jur.2d Negligence § 1037 (database updated August 2015). More specifically, this rule is followed in jurisdictions that have apportionment schemes similar to that of OCGA § 51–12–33, in which, consistent with the analysis in Zaldivar, 297 Ga. at 597(1), 774 S.E.2d 688,² 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.

Mack Trucks v. Tackett, 841 So.2d 1107, 1114(III) (a) (Miss.2003) (footnote omitted). See also Ocasio v. Fed. Express Corp., 162 N.H. 436, 33 A.3d 1139, 1147(II) (A)(3)(a) (2011) ("[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").

Nevertheless, Walker says, the allocation of fault under OCGA § 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 urges, OCGA § 51–12–33(c) cannot reasonably be understood to permit such an allocation of fault. We disagree. The General Assembly has determined that the exclusive remedy provision and limited benefits of the workers' compensation system, OCGA § 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).

The result of immunizing employers from fault as well as from liability is that third parties pick up the tab for the employer's fault, potentially paying more than their share in order to make up for the excluded employer.... The question becomes whether the injured plaintiff must see his potential recovery diminished by an assignment of fault to his immune employer or whether a third party defendant may be made to respond in damages in an amount that exceeds that defendant's proportionate share of fault in causing the injury.... [T]he more equitable result is to permit allocation of fault to the exempt employer. While this

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