by Vincent A. Toreno, Esq.

The Georgia Supreme Court’s recent decision in Walker v. Tensor Machinery Ltd. does not impact exclusive remedy protection for employers, but could result in employers becoming more involved in the discovery process, and possibly the trials, of lawsuits brought by injured employees against third parties for their work related injuries. In Walker, the Georgia Supreme court addressed the issue of apportionment and ruled that the fault of a claimant’s employer can be considered in assessing damages in the employee’s lawsuit against the third party.

In Walker, the claimant sustained a work injury while operating machinery on the job. He settled his workers’ compensation claim with his employer and then filed a products liability suit against the manufacturer of the machine which caused the injury. The manufacturer gave statutory notice that it would ask the jury to assign fault for the claimant’s injuries to his employer. The claimant opposed this move arguing that fault could not be apportioned to an employer because the employer has immunity from liability in tort by virtue of the exclusive remedy provision of the Georgia Workers’ Compensation Act. This provision prevents an injured employee from suing his employer and, instead, limits the employee’s recovery to those specified under the Workers’ Compensation Act.

While acknowledging that the employer is immune from suit in tort for work injuries, the court found that this immunity does not prevent the jury from assessing fault against the employer in the employee’s lawsuit. The apportionment statute is explicit in stating that fault may be assessed against a third party “regardless of whether the person or entity was, or could have been, named as a party” in the lawsuit. Thus, the court allowed the alleged fault of the employer to be considered in assessing damages to be awarded to the plaintiff. Essentially what this means is that the employer was allowed to be placed on the verdict form along with the defendant or defendants. The jury then would be charged by the judge to determine the percentage fault of each party and non-party on the verdict form. However, this is not the same as being sued, and although the employer was placed on the verdict form, any fault assessed against the employer would not be recovered by the plaintiff and, more importantly, would not be assessed against the employer. Additionally, because the employer was not actually a party to the lawsuit, it is not bound by any findings of fact or liability made by the jury.

While no damages will actually be recovered from the employer in cases where the employer is named on the verdict form in third party suits, this ruling will undoubtedly lead to employer involvement in the discovery process and possibly the trial itself as the negligence of the employer must be established by evidence at trial. The defendant will try to demonstrate the employer was negligent and at fault for the injury to place some or all of the responsibility on the employer, and the plaintiff/claimant will take the contrary position.