The Supreme Court of Georgia Approves an Injured Employee’s Tort Suit
The Supreme Court of Georgia Approves an Injured Employee’s Tort Suit
Against his Injury-Causing Co-Worker
In the recent Georgia Supreme Court case of Smith v. Ellis, 731 S.E. 2d 731 (2012), the Court took up the issue of whether an injured employee, after settling a disputed workers’ compensation claim on a no-liability basis, can later sue his injury-causing co-worker.
Smith and Ellis were employed by a Georgia homebuilder and decided one sunny February afternoon to get together during work hours so the two could shoot guns Ellis recently purchased. Smith and Ellis decided to meet at an undeveloped neighborhood site in Dawsonville owned by their employer, in order to find a safe location in which they could discharge Ellis’ new firearms. After loading his weapons, Ellis began firing his new rifle while Smith organized his work tools next to his truck. The rifle jammed three times and Ellis successfully cleared the first two rounds but, perhaps out of an unrealized desire to be the topic of a legal article, Ellis accidentally shot Smith in the right thigh while attempting to clear the third round.
Following the injury, Smith filed a workers’ compensation claim against his employer alleging that his injury was compensable under the Georgia Workers’ Compensation Act because it arose out of and in the course of his employment. His employer agreed to settle for $6,000.00 in exchange for Smith’s stipulation that he had not sustained a compensable injury. The two parties therefore agreed to settle on a “no liability” basis.
Nine months later, Smith sued Ellis for negligence and Ellis moved for summary judgment contending that the tort lawsuit was barred by the Workers Compensation Act’s exclusive remedy provision as set forth in O.C.G.A § 34-9-11(a). According to that statute, “The rights and remedies granted to an employee by this chapter 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 tortfeasor, other than an employee of the same employer ….” (emphasis added)
Accordingly, Ellis argued that even though he shot Smith in the leg, Smith could not sue him because the two were co-workers, and he was protected by the Act’s “exclusive remedy” provision. On the other hand, Smith argued that because he settled his claim on a “no liability” basis, his injury was not compensable under the Act and therefore the exclusive remedy provision did not apply.
The Supreme Court was not receptive to Smith’s argument. Citing O.C.G.A § 34-9-15(b), the Court noted, “When [a] 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, once an employee settles under § 34-9-15(b), 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 tortfeasor. The Court went on to reason: “An employee may not file a workers’ compensation claim against his employer alleging that he 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 now alleging that the injury was not compensable, hoping that the court will disregard the prior resolution of the case, deeming the injury not compensable under the Act, and allow a second recovery.” Thus, the Supreme Court refused to allow Smith to have his cake and eat it, too.
However, all was not lost. Smith also argued he should be allowed to sue Ellis because Ellis was not acting in his capacity as a fellow employee when he injured Smith. In other words, Smith argued Ellis be deemed a “third-party tortfeasor” rather than an employee of the same employer because Ellis stepped aside from the employment when he shot Smith. The Supreme Court agreed and in doing so, refined the interpretation of O.C.G.A § 34-9-11(a).
According to the Court: “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.” The Supreme Court went on to reason: “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.”
Referring to an example used by Smith at oral argument: what 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 responsibility. The injured delivery driver would be barred from bringing a tort suit against the off-duty office clerk simply because the two were employed by the same company.
As a result, the Supreme Court ruled that a strict interpretation of § 34-9-11(a) would yield an absurd result in this situation. Therefore, because Ellis was not acting in the course of his employment when he injured Smith, he should not be afforded the protections of the Act’s exclusive remedy provision. Accordingly, the Supreme Court allowed Smith’s lawsuit against Ellis to proceed.