Walker v. Tensor MacHinery, Ltd.
298 Ga. 297
Ga.2015Background
- Plaintiff Jock L. Walker was injured at work operating a machine allegedly defectively designed/manufactured by Tensor; he settled with his employer for workers’ compensation and sued Tensor for negligent failure to warn.
- Tensor sought to notify intent under OCGA § 51-12-33 to have the jury apportion fault to Walker’s (nonparty) employer despite the employer’s immunity under OCGA § 34-9-11 (exclusive remedy).
- Walker moved to exclude evidence of employer fault, arguing the apportionment statute cannot assign fault to an employer immune under the Workers’ Compensation Act.
- The Georgia Supreme Court had recently decided Zaldivar v. Prickett interpreting OCGA § 51-12-33(c) to allow apportionment of fault to nonparties who breached a legal duty, even if they have affirmative defenses or immunity.
- The Court certified the question whether OCGA § 51-12-33(c) permits the jury to assign fault to a nonparty employer immune under the Workers’ Compensation Act.
- The majority reaffirmed Zaldivar and held that OCGA § 51-12-33(c) does permit allocation of fault to immune nonparty employers; two justices dissented.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OCGA § 51-12-33(c) allows apportionment of fault to a nonparty employer immune under OCGA § 34-9-11 | Walker: allowing apportionment to an immune employer upsets the workers’ compensation quid pro quo, interferes with subrogation, and imposes litigation burdens on employers | Tensor/Majority: Zaldivar permits considering the fault of any tortfeasor who breached a legal duty proximately causing injury, even if immune; assigning fault is consistent with fairness and apportionment principles and does not negate immunity | Yes — the statute allows juries to assign fault to nonparty employers with workers’ comp immunity; majority answers certified question affirmatively |
| Effect on employer subrogation and plaintiff recovery | Walker: assigning employer fault will often reduce tort recovery so employer cannot be fully subrogated, undermining statutory bargain and prejudicing employee | Majority: subrogation statute already conditions recovery on the employee being fully compensated; reduced subrogation is not a reason to exclude employer fault; allocation promotes equitable sharing of loss | Held: allocation may reduce subrogation but is consistent with statutes and policy; not a bar to apportionment |
| Whether apportionment imposes undue discovery/litigation burdens on immune employers | Walker: immune employers would face substantial new litigation costs and disruption despite no liability | Majority: employers already face nonparty discovery in workplace-injury litigation; apportionment only adds relevant subject matter and does not eliminate immunity | Held: discovery burden does not justify exempting employers from apportionment |
| Whether employers with immunity should be treated differently from other immune nonparties | Walker: workers’ comp scheme provides a compelling reason to treat employers differently | Majority: no compelling reason; immunity does not erase fault so employers are not to be treated differently under § 51-12-33(c) | Held: immune employers are treated like other immune tortfeasors for apportionment purposes |
Key Cases Cited
- Zaldivar v. Prickett, 297 Ga. 589 (Ga. 2015) (OCGA § 51-12-33(c) permits consideration of fault of nonparty tortfeasors even if they have defenses or immunities)
- Mack Trucks, Inc. v. Tackett, 841 So.2d 1107 (Miss. 2003) (allocating fault to immune employers is consistent with apportionment and prevents unfair burden on third parties)
- Ocasio v. Fed. Express Corp., 33 A.3d 1139 (N.H. 2011) (distinguishing liability from fault; immunity shields liability but not allocation of fault)
- Fabre v. Marin, 623 So.2d 1182 (Fla. 1993) (apportionment can include nonliable tortfeasors)
- Sullivan v. Scoular Grain Co., 853 P.2d 877 (Utah 1993) (accepted practice to include negligent but nonliable parties, such as in workers’ compensation contexts)
- Southern R. Co. v. Overnite Transp. Co., 223 Ga. 825 (Ga. 1967) (subrogation principles aim to prevent double recovery and to do substantial justice)