This month, the Georgia Supreme Court further extended the reach of the Georgia law addressing the apportionment of liability in tort cases in the case of Walker, et al. v. Tensor Machinery, et al. The Court had recently decided the case of Zaldivar v. Prickett, et al. and held that the trier of fact could consider a non-party which is not actually liable to the plaintiff in tort as a non-party responsible for the “fault” which caused the underlying injury and thus reduce the liability of the defendant according to the percentage of that fault under O.C.G.A. § 51-12-33, Georgia’s Apportionment Statute.

Even before the Court issued its ruling in Zaldivar, the United States District Court for the Northern District of Georgia, in advance of the trial for the Walker case, certified to the Court the question of whether the trier of fact can assess a percentage of fault to an employer under the Apportionment Statute even though the state Workers’ Compensation Act bars a direct claim by the employee against the employer for the underlying tort. The Court answered this question in the affirmative. In Walker, the plaintiff Jock L. Walker was injured at work while operating a machine, and he and his wife brought a product liability action against the entities, which designed and manufactured the machine. The defendants sought to have the trier of fact assign a percentage of fault for Mr. Walker’s injuries under the Apportionment Statute to his employer. In response, plaintiff moved to exclude any evidence relating to the employer’s fault arguing that a trier of fact cannot apportion fault to a non-party employer with immunity from liability in tort under the Workers’ Compensation Act.

Addressing the impact of the Walker decision on several issues relating to the workers’ compensation system raised by plaintiff, the Court first found that the allocation of fault to an immune employer would not affect the exclusive remedy provision and limited benefits guaranteed under the Workers’ Compensation Act. The Court also determined that apportioning fault to a non-party employer may further limit the employers’ ability to seek reimbursement of any partially paid workers’ compensation liability from any damages recovered by the employee, also known as subrogation. This effect on the right of subrogation may occur because assigning fault to the nonparty employer would reduce the award of damages, which may result in the employee not receiving enough compensation, excluding his workers’ compensation benefits, for the employer to have a subrogation claim. The Court, however, ultimately concluded that it was not inherently unfair for the nonparty employer to bear some cost for its own fault instead of another tortfeasor bearing the cost. And, finally, the allocation of fault to non-party employers, according to the Court, does not significantly increase the burden for the non-party employers in terms of discovery as employers have always been subject to certain discovery in administrative proceedings and non-party discovery, although now any non-party employer may need to address certain discovery requests pertaining to its fault associated with an employee’s injury.

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