The principal question in this appeal is whether an employee who files an injury claim against his employer under the Workers’ Compensation Act, OCGA §§ 34-9-1 to 34-9-421, and receives compensation in exchange for a “no liability” settlement with his employer that is approved by the State Board of Workers’ Compensation pursuant to OCGA § 34-9-15 (b), may then turn around and sue the co-employee who caused the injury in a tort action. Ten years ago, the Court of Appeals answered this question no, holding that the Act’s exclusive remedy provision, OCGA § 34-9-11 (a), bars such a lawsuit based on the same injury for which the employee has already received a remedy under OCGA § 34-9-15 (b). See Ridley v. Monroe,
We hold that Ridley was correctly decided. Thus, appellant Joseph Smith, having previously entered a Board-approved settlement with his employer under OCGA § 34-9-15 (b) in exchange for compensation, would be barred from suing appellee John Ellis for the same injury in tort if Ellis qualifies as an “employee of the same employer” as Smith, rather than a “third-party tort-feasor,” as those phrases are used in OCGA § 34-9-11 (a). However, the evidence does not establish, without genuine dispute, that Ellis was acting as “an employee of the same employer,” that is, in the course of his employment, at the time he injured Smith. The trial court therefore erred in granting summary judgment to Ellis, and that judgment is reversed.
1. On appeal from an award of summary judgment, we view the evidence and make all reasonable inferences from it in the light most favorable to the non-moving party. See Kaplan v. City of Sandy Springs,
On February 12, Ellis called Smith to arrange a meeting so that he could borrow one of Smith’s tools for his personal use. Ellis also wanted to shoot some new guns he had purchased, including an AR-15 rifle, in an undeveloped field in the Westcott Place subdivision. At 10:30 the next morning, the two men met at a house that Smith was finishing in Westcott Place. Ellis made one phone call regarding a problem with the house and then followed Smith through a couple more houses for which Smith was responsible before they went to lunch around 11:00 a.m. Smith and Ellis returned to the subdivision at 1:00 p.m., where Smith continued to work. Ellis had no work to dо and left that part of the property to avoid being seen by one of his supervisors, because he was not supposed to be at Westcott Place. At about 2:30 p.m.,
The Knight Group fired both men shortly after the shooting. Smith filed a workers’ compensation claim against the employer, alleging that his injury was compensable under thе Act because it arose out of and in the course of his employment. See OCGA § 34-9-1 (4) (defining “injury” to mean “only injury by accident arising out of and in the course of the [employee’s] employment”). The Knight Group ultimately agreed to pay Smith $6,000 in exchange for his stipulation that he had not sustained a compensable injury. Pursuant to OCGA § 34-9-15 (b), the “no liability” settlement was submitted to and approved by the Workers’ Compensation Board, which issued an award denying the employer’s liability on June 4, 2009.
Nine months later, Smith sued Ellis for negligence, and Smith’s wife, appellant Janet Smith, sued for loss of consortium. Ellis moved for summary judgment on both claims, contending that the tort lawsuit was barred by the Act’s exclusive remedy provisiоn, OCGA § 34-9-11 (a).
Presiding Judge Barnes, writing for the six judges in favor of reversing the trial court, said that “[i]f an injury is not compensable under the Workers’ Compensation Act, then the exclusive remedy provision doеs not apply.” Smith v. Ellis, Case No. A11A2171, decided March 29, 2012, slip op. at 7 (opinion of Barnes, P. J.) (unpublished). Presiding Judge Barnes then said that Smith’s injury was not compensable under the Act, because “[n]o rational mind can see a causal connection in this case between the conditions of [Smith’s] employment and his injury.” Id. at 8. Although Ridley held that a no-liability settlement triggers the Act’s exclusive remedy provision and bars the injured employee from later suing a co-worker in tort, Presiding Judge Barnes concluded that Ridley’s holding was “illogical” and should be overruled. Smith, slip op. at 8 (opinion of Barnes, P. J.).
Judge Andrews, writing for the six judges in favor of affirming the trial court, held that Ridley controlled and was correctly decided. Smith, slip op. at 5 (opinion of Andrews, J.). Although Judge Andrews agreed that the exclusive remedy provision does not apply if an injury is not comрensable under the Act, he noted that Smith was actually compensated under the Act. See id. Judge Andrews observed that Smith’s “ ‘settlement agreement was approved by the Board and thus it represents an award of the Board,’ ” id. at 5 (quoting Aetna Cas. & Sur. Co. v. Davis,
The equal division of the Court of Appeals sent the case to this Court.
The rights and the remedies granted to an employee by this chapter [i.e., the Act] shall exclude all other rights and remedies of such employee ... at common law or otherwise, on account of such injury, loss of service, or death; 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 ....
OCGA § 34-9-11 (a). Among the rights and remedies granted to an employee like Smith by the Act is the optiоn to obtain compensation for an alleged work-related injury through a Board-approved settlement. See OCGA § 34-9-15.
(b) It is well established that a settlement under OCGA § 34-9-15 (a) which requires an employer to compensate its employee for an alleged injury bars a subsequent tort suit by the employee against anyone protected by the exclusive remedy provision, regardless of the actual circumstances of the employee’s injury and the аmount of compensation to which the parties agreed. See Haygood v. Home Transp. Co.,
The precedent accords with the clear terms of OCGA § 34-9-11 (a): once an employee settles under OCGA § 34-9-15 (a), he has exercised one of “the rights and remedies granted to an employee” by the Act and therefore is barred from pursuing a claim for the same injury against anyone except a “third-party tort-feasor, other than an employee ofthe same employer.” The rule also reflects OCGA § 34-9-15 (a)’s similar command that “[w]hen such settlement has been agreed upon and approved by the board, it shall constitute a complete and final disposition of all claims on account of the incident, injury, or injuries referred to therein.” Thus, when an employee invokes the right and receives the remedy afforded by OCGA § 34-9-15 (a), §§ 34-9-11 (a) and 34-9-15 (a) prohibit any subsequent attempt by the employee to recover again for the same injury, except against a third-party tort-feasor other than an employee of the same employer.
(c) Before 2000, there was apparently some uncertainty as to whether the Board could approve so-called “no liability” settlements, although the Board had already been doing so. See Lisa Kabula, Labor and Industrial Relations: Workers’ Compensation: Amend Certain Provisions, 17 Ga. St. U. L. Rev. 231, 234, n. 32 (2000). That July, the General Assembly added subsection (b) to OCGA § 34-9-15, see Ga. L. 2000, p. 1321, which expressly authorizes the Board to approve settlement agreements which stipulate that there is no liability under the Act.
Two years later in Ridley, the Court of Appeals held that a settlement under OCGA § 34-9-15 (b) that compensates the employee for his injury has the same effect as a settlement that provides for payment under OCGA § 34-9-15 (a). See Ridley,
(d) Smith and Presiding Judge Barnes’s opinion argue that Smith’s negligence action against Ellis should not be barred because it did not, in their view, arise out of and in the course of Smith’s employment and therefore was not an “injury” within the scope of the exclusive remedy provision. See Smith, slip op. at 8 (opinion of Barnes, P. J.). But redetermination of this issue is precisely what is precluded by OCGA §§ 34-9-11, 34-9-15, and the precedent correctly interpreting those provisions. An employee may not file a workers’ compensation claim against his employer alleging that he has suffered a compensable injury; reach a settlement with the employer to obtain compensation; avail himself of the right and remedy granted by the Act to seek and obtain the Board’s approval of the settlement, thereby resolving the case; and then turn around and sue the employer (or “an employee of the same employer”)
The Act’s preclusion of such inconsistent, follow-on litigation does not depend on whether the employer admits liability in the settlement, which is not mandated by OCGA § 34-9-15 (a) or (b). Nor does it depend on the Board’s stating that, if the case were fully adjudicated, the Board would find liability or award the amount of compensation due if the employer did not dispute liability. See OCGA § 34-9-15 (a) (authorizing the Board to approve settlements when “there is a genuine dispute as to the applicability” of the Act and where the settlement “provide [s] for the payment of compensation in a sum or sums less than would be payable if there were no conflict as to the employee’s right to recover compensation”). Instead, preclusion results from the employee’s having exercised a right and received a remedy under the Act on account of an injury that he contended was compensable because it arose out of and in the course of his employment. See, e.g., Thorn,
Settlements approved by the Board under OCGA § 34-9-15 (a) and (b) are no less rights and rеmedies granted by the Act than are awards entered after full adjudication, with its attendant costs and delays. And the preclusive effect of a Board-approved settlement under OCGA § 34-9-15 (a) or (b) plainly does not depend on a determination of the employer’s actual liability for the injury at issue, since both subsections direct that “[w]hen such settlement has been agreed upon and approved by the board, it shall constitute a complete and final disposition of all claims on account of the incident, injury, or injuries referred to therein.”
(e) Because Smith settled his workers’ compensation injury claim against his employer under OCGA § 34-9-15 (b), he is barred from bringing an actiоn on account of the same injury against anyone except a “third-party tort-feasor, other than an employee of the same employer.” OCGA § 34-9-11 (a). The contrary view expressed in Presiding Judge Barnes’s opinion is erroneous.
3. That holding, however, does not fully resolve this appeal. Smith also argues that, even under Ridley, his lawsuit against Ellis is not barred by the exclusive remedy provision because Ellis was not acting in his capacity as a fellow employee of The Knight Group when he injured Smith. In other words, Smith says Ellis should be deemed a “third-party tort-feasor” rather than an “employee of the same employer.” OCGA § 34-9-11 (a). Indeed, in both the trial court and the Court of Apрeals, Smith sought to distinguish Ridley in this way, rather than arguing that the case should be overruled. See Smith, slip op. at 1, n. 1 (opinion of Andrews, J.). The Court of Appeals, however, focused on whether Ridley should be overruled, with neither opinion squarely addressing this subsidiary issue. We believe Smith’s argument has merit.
(a) If the phrase were read in isolation, we could say that Ellis was an “employee of the same employer” as Smith. In construing statutes, however, we do not read words in isolation, but rather in context. See Brown v. State,
Unlike the argument addressed in Division 2 (d) above, Smith’s contention that Ellis was not acting as a co-employee when the injury occurred does not contradict the position Smith took before the Workers’ Compensation Board and does not raise the res judicata and estoppel concerns that animate OCGA §§ 34-9-11 and 34-9-15 and the precedent. In his settlement with The Knight Group, Smith contended that “while active in the course and scope of [his] employment, [he] sustained a compensable injury.” Thus, he is barred from now claiming that his injury was not compensable, and he could not turn around and sue The Knight Group under that theory. See Thorn,
Taking the phrase “employee of the same employer” out of its statutory context would render all employees who work for the same employer immune from suit in cases far removed from their workplace and entirely unconnected to their employment or their employment-related dealings with fellow employees. As long as the plaintiff happened to be employed by the same employer and working at the time of the injury, it would make no difference whether the co-employee defendant was at work, off-duty, or even on vacation when the injury occurred. To use an example suggested by Smith at oral argument, if a UPS driver delivering packages in Atlanta was struck and injured by a car driven negligently by a UPS office clerk from Savannah, who was driving her kids to a soccer tournament on a Saturday afternoon and thus undeniably off-duty and far removed from any employment responsibilities, the on-duty driver would be entitled to seek workers’ compensation benefits from UPS. However, only by ripping the words of OCGA § 34-9-11 (a) from their workers’compensation context could it be said in these circumstances that the off-duty co-employee was functioning as an “employee of the same employer” rather than as a “third-party tort-feasor” when she caused the injury.
(b) As Smith points out, precedent from the Court of Appeals accords with this reading of OCGA § 34-9-11 (a). In Crawford v. Meyer,
The Court of Appeals held that Crawford’s tort action was barred by the Act, but it did not do so simply by noting that the two women worked for the same employer, which was indisputable. Instead, the court examined whether Meyer was still acting “ ‘in the course оf [her] employment’ ’’when the accident occurred. Crawford,
Even where the plaintiff apparently did not first obtain workers’ compensation benefits, the Court of Appeals has conducted a similar analysis. In Stevenson v. Ray,
Stevenson (and his wife) sued Ray in tort, and Ray moved for summary judgment, arguing that the action was barred by the exclusive remedy provision, even though the opinion does not mention a prior workers’ compensation claim or award. Stevenson, 282 Ga. App. at 654. Stevenson responded that “because Ray was off-duty and had been advised by the shift supervisor not to respond to the incident, the collision between Ray and Stevenson did not arise out of and in the course of Ray’s employment.” Id. at 654. Again, the Court of Appeals did not grant summary judgment to Ray simply because the employees shared the same employеr in a broad sense. As in Crawford, the court examined whether the plaintiff employee’s injury occurred in the course of the defendant employee’s employment. The Court of Appeals explained that “police officers are considered to act within the course of their employment when they are on duty or on call” and concluded, “Although Ray was off-duty at the time of the collision, he was on call. Accordingly, Ray was in the course of his employment at the time of Stevenson’s injury.” Stevenson,
Ridley is not to the contrary, even though at one point in that case the Court of Appeals said broadly that “OCGA § 34-9-11 bars tort suits against an employer or its employees following a workers’ compensation settlement.”
The same may be true in many cases where an injured employee who has resolved a workers’ compensation claim against his employer then sues a co-employee for negligently causing the injury. Once the injured employee’s work status is established, it will often be obvious and undisputed that the defendant employee was also acting in the course of his employment. See, e.g., Clark v. Williamson, 206 Ga. App. 329, 330-332 (
(c) Other courts interpreting similar statutory language have similarly held that fellow employees are not protected by the exclusive remedy provision unless they were acting in the course of their employment when they injured their co-worker. As the Delaware Supreme Court explained:
There is uniformity of opinion that a “person in the same employ” means a person employed by the same employer and acting in the course of his employment at the time of the injury to the co-employee. It is agreed that the statutory language requires more than an employer in common without regard for the time, place, or circumstances of the accident; and that it encompasses more than acts within the scope of the offending employee’s regular duties.
Groves v. Marvel,
(d) In response, Ellis notes only that co-employees who commit intentional torts may be protected by the exclusive remedy provision, see Heard v. Mitchell’s Formal Wear,
(e) Summary judgment is proper only when the non-moving party fails to raise a genuine issue of material fact, even when construing the evidence in that party’s favor. See OCGA § 9-11-56 (c); Raplan,
It is clear, however, that Smith has pointed to sufficient evidence in the record that shows there is a genuine dispute about that issue. Unlike Smith, who was injured while in the subdivision where he was assigned, had been doing his job, and was still engaged in organizing his work tools next to his truck, Ellis had come that day to a different subdivision in a different city to borrow a tool for personal use and to shoot his new guns. Ellis had worked little if at all that morning, and after lunch he did no work and actually hid his presence from a supervisor. Moreover, Ellis injured Smith during an activity their employer did not condone, much less direct.
Issue on which the Court of Appeals was equally divided resolved and case remanded with direction.
Notes
It is undisputed that Janet Smith’s claim is dependent on the viability other husband’s claim. See Dickey v. Harden,
OCGA § 34-9-15 provides in full that:
(a) Nothing contained in this chapter shall he construed so as to prevent settlements made by and between the employee and employer but rather to encourage them, so long as the amount of compensation and the time and manner of payment are in accordance with this chapter. A workers’ compensation insurer shall not be authorized to settle a claim on behalf of its insured employer without giving prior notice to such employer of the terms of the settlement agreement. A copy of any such settlement agreement shall be filed by the employer with the board, and no such settlement shall be binding until approved by the board. Whenever it shall appear to the board, by stipulation of the parties or otherwise, that there is a bona fide dispute as to facts, the determination of which will materially affect the right of the employee or dependent to recover compensation or the amount of compensation to be recovered, or that there is a genuine dispute as to the applicability of this chapter, and it further appears that the parties have agreed upon a settlement between themselves, which settlement gives due regard and weight to the conflicting evidence available relating to the disputed facts or to the questions as to the applicability of this chapter, then, upon such determination, the board shall approve the settlement and enter an award conforming to the terms thereof even though such settlement may provide for the payment of compensation in a sum or sums less than would be payable if there were no conflict as to the employee’s right to recover compensation. When such settlement has been agreed upon and approved by the board, it shall constitute a complete and final disposition of all claims on account of the incident, injury, or injuries referred to therein, and the board shall not be authorized to enter upon any award subsequent to such board approval amending, modifying, or changing in any manner the settlement, nor shall the settlement be subject to review by the board under Code Section 34-9-104.
(b) The board shall be authorized to approve a stipulated settlement between the parties which concludes that there is no liability under this chapter and to retain jurisdiction to enforce any agreement which resolves, in whole or in part, a claim filed with the board. If payments required under such an agreement are not made within 20 days, the board may assess a penalty of 20 percent in the same manner as provided in Code Section 34-9-221. When such settlement has been agreed upon and approved by the board, it shall constitute a complete and final disposition of all claims on account of the incident, injury, or injuries referred to therein, and the board shall not be authorized to enter upon any award subsequent to such board approval amending, modifying, or changing in any manner the settlement, nor shall the settlement be subject to review by the board under Code Section 34-9-104.
(c) The board or any party to the settlement agreement may require that the settlement documents contain language which prorates the lump sum settlement over the life expectancy of the injured worker. When such an agreement has been approved, neither the weekly compensation rate paid throughout the case nor the maximum statutory weekly rate applicable to the injury shall apply. No comрensation rate shall exceed the maximum statutory weekly rate as of the date of injury. Instead, the prorated rate set forth in the approved settlement documents shall control and become the rate for that case. This subsection shall be retroactive in effect.
The trial court did not address the evidence regarding whether Ellis was acting in the course of his employment when he injured Smith, instead noting that “[t]he exclusive remedy applies to injuries caused by all ‘co-employees, regardless of their position, skills, or responsibilities.’ ” (Quoting Rheem Mfg. Co. v. Butts,