David Keith Pogue Denise Pogue v. Oglethorpe Power Corp. Rome Employment Services, Inc.
Docket: 95-8084
Court: Court of Appeals for the Eleventh Circuit; May 9, 1996; Federal Appellate Court
David and Denise Pogue filed a negligence lawsuit against Oglethorpe Power Corporation and Rome Employment Services, Inc. following David Pogue's serious injury at a construction site. The district court ruled in favor of the defendants, leading the Pogues to appeal. The core issue is whether a Georgia premise owner can claim statutory tort immunity under O.C.G.A. 34-9-11 after purchasing a "wrap-up" insurance policy covering all contractors and subcontractors on-site. Due to the lack of clear Georgia appellate court guidance on this matter, the question was certified to the Georgia Supreme Court.
At the time of the injury, Oglethorpe was the majority owner of the Rocky Mountain Project, aimed at constructing a pump storage facility in Floyd County, Georgia. Oglethorpe contracted with Power Plant Constructors and provided a wrap-up insurance policy from Argonaut Insurance Company, naming Power Plant as the insured. Additionally, Oglethorpe established a safety program for the project, utilizing four safety inspectors "leased" from RES, who operated as Oglethorpe employees except for their payroll status.
David Pogue began his employment with Power Plant in October 1991 as a cement finisher. At that time, the construction site was still incomplete, with safety measures, such as plywood covers and railings around floor openings, inconsistently implemented. On June 5, 1992, while working, Pogue and a colleague encountered an unguarded opening covered with plywood, which they had previously navigated to perform their duties.
Pogue sustained serious injuries after falling forty-eight feet when the plywood he stepped on gave way while he was entering a room after replenishing concrete. He is currently receiving workers' compensation benefits through a wrap-up policy purchased by Oglethorpe. Pogue sued Oglethorpe and RES for negligence in providing a safe workplace and negligent inspection; his wife also sued for loss of consortium. The district court granted summary judgment to Oglethorpe based on statutory immunity under O.C.G.A. 34-9-11, stating that Oglethorpe, as a provider of workers' compensation benefits, was immune from liability. Summary judgment was also granted to RES due to lack of a viable recovery theory against them. The Pogues abandoned their claim against RES and appealed the ruling regarding Oglethorpe's immunity. The appeal focuses on whether a premise owner can claim tort immunity under O.C.G.A. 34-9-11 when they have a wrap-up insurance policy for all contractors and subcontractors on-site. Oglethorpe contends it is entitled to this immunity as it indirectly provided workers' compensation benefits to Pogue through its insurance policy covering Pogue's employer, Power Plant. The legal question is whether this statutory immunity applies in such circumstances.
Oglethorpe cites Fred S. James Co. v. King to argue for statutory tort immunity in a workers' compensation context. In Fred S. James, an injured employee claimed the insurance broker of his self-insured employer was liable for not warning of unsafe conditions. The Georgia Court of Appeals ruled that the broker was the alter ego of the employer and thus entitled to the same immunity as insurers under the workers' compensation statute. The court reasoned that any service agency performing an employer's statutory duties should also enjoy this immunity.
Oglethorpe contends that, similar to the broker, it has assisted in fulfilling Power Plant's workers' compensation obligations by purchasing insurance, thereby asserting entitlement to immunity. However, the Pogues distinguish this case by noting that Power Plant is not self-insured, and Oglethorpe is merely a project owner, not an insurer or service agency. They also reference George v. Ashland-Warren, Inc., where the Georgia Supreme Court ruled against a contractor's claim for immunity based on an indemnification agreement, arguing that Ashland-Warren did not provide workers' compensation benefits under the statute.
The Georgia Supreme Court clarified the interpretation of the 'provides workers' compensation benefits' provision in O.C.G.A. 34-9-11, emphasizing its purpose to grant tort immunity solely to workers' compensation insurers. The Court rejected Ashland-Warren's argument, noting that its actions did not qualify as providing workers' compensation benefits to an injured employee, as it merely reimbursed the Department of Transportation (DOT) and did not operate as an insurance company. This agreement was deemed insufficient to confer the tort immunity under the statute, which is intended to protect the injured employee's common law rights against third-party tortfeasors.
Pogue contended that Oglethorpe, like Ashland-Warren, could not create tort immunity for itself by agreeing to indemnify an employer for workers' compensation benefits, as Oglethorpe is neither the employer nor a workers' compensation insurer under O.C.G.A. 34-9-11. Pogue cited Yoho v. Ringier of America, Inc., establishing that only entities that are secondarily liable for workers' compensation benefits, such as contractors, are entitled to tort immunity. Oglethorpe, as a property owner rather than a contractor, would not be considered secondarily liable and therefore not entitled to immunity.
In response, Oglethorpe argued that the Ashland-Warren decision did not overrule prior case law and that the ruling in Yoho regarding enterprise liability was not applicable to its case.
Determining the applicability of tort immunity under Georgia law in this case is complex, with implications from both the Ashland-Warren and Fred S. James rulings. Ashland-Warren seems to deny tort immunity to Oglethorpe, as it is not classified as an employer of the injured employee or the insurer. However, the Ashland-Warren court did not overrule Fred S. James, which may provide Oglethorpe with tort immunity if it is deemed to be assisting in fulfilling an employer's statutory duties under the Workers' Compensation Act. The decision does not clarify the issues, particularly since Oglethorpe has a connection to the payment of the plaintiff's workers' compensation benefits, distinguishing it from the case Yoho.
The uncertainty surrounding the statutory tort immunity has significant public policy implications. To resolve this doubt regarding state law, the federal court proposes certifying the question to the Georgia Supreme Court, emphasizing that only the state's highest court can definitively interpret state law. The certified question inquires whether a premise owner, who has acquired a wrap-up insurance policy covering all on-site contractors and subcontractors, is entitled to the statutory tort immunity under O.C.G.A. 34-9-11. The court affirms the summary judgment for Rome Employment Services, Inc., but withholds a decision regarding Oglethorpe until the state court responds to the certified question.
