Jerry T. Troup, Jr. v. Fischer Steel Corporation

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
February 2006 Session

JERRY T. TROUP, JR. v. FISCHER STEEL CORPORATION

An Appeal from the Circuit Court for Shelby County
No. CT-001249-01 D'Army Bailey, Circuit Judge

No. W2005-00913-COA-R3-CV - Filed August 10, 2006

This is a personal injury action involving comparative fault. At a warehouse construction site, the
defendant steel subcontractor cut a hole in the roof of the partially constructed warehouse. A
temporary cover was put over the hole. A week later, the plaintiff employee of a roofing
subcontractor fell through the hole and sustained serious injuries. The plaintiff received full
workers’ compensation benefits from his immediate employer, the roofing subcontractor.
Subsequently, the plaintiff filed a personal injury lawsuit against the defendant steel subcontractor.
The steel subcontractor then sought to assert fault against the general contractor in charge of the
entire warehouse construction project. The steel subcontractor filed a motion in limine to assert fault
against the nonparty general contractor. The motion was denied and the case proceeded to a jury
trial. At the conclusion of the trial, the jury awarded the plaintiff $546,000. The defendant steel
subcontractor now appeals, asserting numerous errors by the trial court, including error in precluding
the steel subcontractor from asserting fault against the general contractor. We reverse the trial
court’s denial of the motion in limine, vacate the judgment, and remand, finding that the steel
subcontractor should have been permitted to assert fault against the general contractor.

Tenn. R. App. P. 3; Judgment of the Circuit Court is Reversed, Vacated and Remanded

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which W. FRANK CRAWFORD , P.J., W.S.,
and DAVID R. FARMER , J., joined.

Stephen C. Barton and Kevin Baskette, Memphis, Tennessee, for Appellant/Defendant Fischer Steel
Corporation.

David G. Mills, Cordova, Tennessee, for Appellee/Plaintiff Jerry T. Troup, Jr.

OPINION

This appeal arises out of a personal injury action brought by Plaintiff/Appellee Jerry T.
Troup, Jr. (“Troup”) against Defendant/Appellant Fischer Steel Corporation (“Fischer Steel”), a
Tennessee corporation, for injuries Troup suffered in a dire fall at a warehouse construction work
site in Memphis, Tennessee. The incident occurred on April 2, 1997.
 Troup was employed by John H. Jolly Roofing Supply, Incorporated (“Jolly Roofing”), the
roofing subcontractor at the construction site. At the time of the accident, Troup had been working
for Jolly Roofing for about a month. Troup began working at the construction site as a roofer’s
helper a couple of days prior to his accident.

Belz Enterprises (“Belz”) was the general contractor for the warehouse construction, and
Fischer Steel was retained as a steel subcontractor at the job site. On March 26, 1997, Fischer Steel
cut holes in the roof of the partially-constructed warehouse for the installation of heating and air
conditioning units. After Fischer Steel cut the holes in the roof, it put unsecured temporary covers
over the openings in anticipation that the heating and air conditioning units would be delivered the
next day and installed into the holes. Fischer Steel then left the construction site. However, contrary
to Fischer Steel’s expectations, the heating and air conditioning units were not installed into the
holes in the roof at that time. At some point between March 26, 1997, and the accident on April 2,
1997, the temporary covers placed over the holes by Fischer Steel were removed and wooden pallets
were placed over the holes. These wooden pallets held Jolly Roofing’s roofing materials.

On the afternoon of April 2, 1997, Troup and a co-worker were instructed to go up on the
roof of the warehouse and pick up the pallets with roofing materials on them and connect them to
a crane. As Troup and the co-worker lifted one of the pallets with roofing materials on it, Troup
noticed the hole underneath the pallet and, while attempting to set the pallet back down, fell through
the hole. Troup fell between thirty and forty feet to the concrete floor below, and suffered serious
injuries to his wrist, ankle, and back. He was evacuated from the work site by helicopter, and spent
approximately seven days in the hospital, undergoing multiple surgeries.

Troup initially filed this personal injury lawsuit in 1997, but voluntarily dismissed it in
August 2000. Subsequently, on February 28, 2001, Troup re-filed the lawsuit against, inter alia,
Fischer Steel1 in the Shelby County Circuit Court in Memphis, Tennessee. The complaint asserted
that Fischer Steel negligently maintained and constructed the roof of the warehouse in such a manner
as to create an unreasonably dangerous condition which was not open or obvious to Troup. The
complaint alleged four negligent acts or omissions: (1) failure to properly inspect the holes in the
roof; (2) failure to install curbs or caps on the holes; (3) failure to adequately cover the holes so that
they would not later become hazardous; and (4) failure to warn others of the holes. Based on these
allegations, Troup sought $750,000 in damages, including punitive damages.

On March 20, 2001, Fischer Steel filed its answer. While admitting many of the general
factual allegations in the complaint, Fischer Steel denied that it had acted negligently, denied that
its actions had directly and proximately caused Troup’s injuries, and denied that it acted recklessly
or in conscious disregard of an unjustifiable risk. Fischer Steel averred that the duty to cover the
holes in the roof had been delegated to, and assumed by, Belz, Jolly Roofing, and/or co-defendant

1
Troup also named Stephens Brothers, Incorporated, the HVAC contractor on the project, as a defendant in the
lawsuit. Stephens Brothers, Inc. was dismissed from this lawsuit on summary judgment in October 2001.

-2-
Stephens Brothers, Inc.2 Consequently, Fischer Steel maintained, it had no continuing duty to cover
the hole through which Troup fell. Fischer Steel argued that the removal of the temporary covers
that Fischer Steel placed over the holes and the placement of the wooden pallets over the holes
constituted an intervening cause of the accident, barring any recovery against Fischer Steel. Fischer
Steel also asserted that Troup was negligent and that his negligence should reduce any potential
recovery. Fischer Steel relied on the doctrine of comparative fault, asking that the negligence of
Belz, Jolly Roofing, and Stephens Brothers be assessed in determining liability.

In April 2001, Jolly Roofing’s workers’ compensation insurance carrier, Granite State
Insurance Company (“Granite State Insurance”), filed a motion to intervene in the litigation, pursuant
to Tennessee’s Workers’ Compensation Act, Tennessee Code Annotated section 50-6-112(c)(1), in
order to protect its statutory subrogation rights in the event Troup recovered damages. In the motion,
Granite State Insurance stated that Troup had previously made a claim against Jolly Roofing and
Granite State Insurance for worker’s compensation benefits for the injuries he sustained in April
1997. As a result, Granite State Insurance paid worker’s compensation benefits for Troup’s medical
expenses, temporary total disability benefits, and permanent partial benefits. On May 1, 2001, the
trial court entered an order granting Granite State Insurance’s motion to intervene.

Discovery ensued. Both Stephens Brothers and Fischer Steel filed motions for summary
judgment, seeking dismissal of Troup’s claims against them. Stephens Brothers’ motion was
granted; Fischer Steel’s was not. Eventually, the jury trial was set for January 24, 2005.

On January 10, 2005, Fischer Steel filed a motion in limine to confirm its right at trial to
argue comparative fault against Jolly Roofing and Belz. In response, Troup argued that Fischer Steel
was not legally entitled to assert comparative fault against either Jolly Roofing or Belz. Fischer Steel
was limited, Troup maintained, “to show[ing] that either Jolly Roofing or Belz Construction
Company or both were ‘the legal cause’ of [Troup’s] injuries.” Granite State Insurance responded
to Fischer Steel’s motion in limine as well, arguing that Fischer Steel should not be permitted to
assert comparative fault against either Jolly Roofing or Belz:

[B]ased upon the Tennessee Supreme Court’s opinions in Ridings v. Ralph M.
Persons Company, 914 S.W.2d 79 (Tenn. 1996), Snyder v. LTG Luefttechnisthe,
955 S.W.2d 252 (Tenn. 1997) and Carroll v. Whitney, 29 S.W.3d 14 (Tenn. 2000),
this court, as a matter of law and statutory construction should deny [Fischer Steel’s]
motion seeking confirmation of its right to allege comparative fault against [Jolly
Roofing] and [Belz] as said entities are statutorily immune from suit under T.C.A.
§ 50-6-108 and T.C.A. § 50-6-113(a) as [Troup’s] employer and statutory employer
respectively.

On January 24, 2005, the trial court entered an order denying Fischer Steel’s motion in limine. The
trial court held that Fischer Steel would not be permitted to allege comparative fault against either

2
This was prior to dismissal of Stephens Brothers from the lawsuit.

-3-
Jolly Roofing or Belz. The trial court’s order did, however, state that Fischer Steel would be
permitted to put on proof and argue that the acts or omissions of Jolly Roofing and Belz were the
cause in fact of Troup’s injuries. Therefore, although the jury would be permitted to hear evidence
indicating that Jolly Roofing and/or Belz were the cause in fact of Troup’s injuries, the jury would
not be permitted to apportion fault to either Jolly Roofing or Belz.

The jury trial commenced on January 24, 2005, and concluded on February 4, 2005,
producing a voluminous record of testimony. On February 4, 2005, after hearing the evidence, the
jury returned a verdict in favor of Troup, awarding damages in the amount of $780,000. It found that
Fischer Steel was seventy percent at fault for Troup’s injuries, and that Troup himself was thirty
percent at fault. Consequently, the judgment against Fischer Steel was seventy percent of the total
damage award, or $546,000. On February 25, 2005, the trial court entered a judgment on the jury
verdict. In the order, the trial court awarded post-judgment interest at the statutory rate of ten percent
per annum, levied costs against Fischer Steel, and found that the intervening plaintiff, Granite State
Insurance Company, was entitled to its lien of $125,568.35.

On March 10, 2005, Fischer Steel filed a motion to set aside the judgment, or, in the
alternative, a motion for a new trial, raising twenty-two points of alleged error. The motion was
denied on April 5, 2005. On April 13, 2005, Fischer Steel filed its notice of appeal.

On appeal, Fischer Steel alleges fourteen errors by the trial court: (1) precluding Fischer
Steel from arguing comparative fault against Belz; (2) permitting Troup’s medical expert, Dr.
Michael Hellman, to testify; (3) failing to grant Fischer Steel’s motions for directed verdict; (4)
precluding Fischer Steel from arguing comparative fault against Troup during closing arguments;
(5) refusing to permit Fischer Steel’s attorney to use Troup’s deposition testimony for a limited
purpose; (6) failing to define and explain Fischer Steel’s cause in fact defense to the jury; (7)
declining to give a superseding cause jury charge as requested by Fischer Steel; (8) instructing the
jury that the legal responsibility of Jolly Roofing and Belz would be determined at a later time or had
already been determined in another forum; (9) allowing Troup to increase his ad damnum at the
conclusion of the proof; (10) failing to dismiss jurors number 6 and number 12; (11) permitting
Troup to testify about matters beyond his competence as a lay witness; (12) allowing testimony by
Troup’s vocational expert that was factually unfounded and misleading; (13) permitting the jury to
hear testimony from a witness’ deposition regarding OSHA safety standards, in violation of the trial
court’s own order; and (14) telling the jury during defense counsel’s cross-examination of Fischer
Steel employee Daniel Tomcho that defense counsel, but not Troup’s counsel, could ask leading
questions of the witness.

Troup raises issues on appeal as well. On appeal, Troup argues that the trial court erred in
declining to rule that, as a matter of law, Troup was not negligent, and in refusing to grant Troup’s
request at trial to amend the ad damnum clause of his complaint.

On appeal, the findings of fact by a jury in a civil action will only be set aside if there is no
material evidence to support the verdict. Tenn. R. App. P. 13(d). The trial court’s legal conclusions

-4-
and its application of the law to the facts in this case are questions of law, reviewed de novo, and are
not entitled to any presumption of correctness. See Carter v. Patrick, 163 S.W.3d 69, 74 (Tenn. Ct.
App. 2004).

We consider first Fischer Steel’s argument that the trial court erred in denying its motion in
limine to confirm Fischer Steel’s rights to argue comparative fault against Belz.3 Fischer Steel
contends that the trial court erred by holding, as a matter of law, that Belz was immune from suit
under the Tennessee Workers’ Compensation Act. Nevertheless, even assuming that Belz was
immune from suit, Fischer Steel argues that the jury should have been permitted to assess fault
against Belz in determining the comparative fault of Fischer Steel.

Here, Troup’s injuries were sustained while he was employed by Jolly Roofing, working at
Belz’ worksite. Troup received full workers’ compensation from Jolly Roofing and its workers’
compensation insurance carrier, Granite State Insurance. Subsequently, Troup brought the instant
personal injury lawsuit against, among others, Fischer Steel for his damages attributable to Fischer
Steel’s alleged negligence. Fischer Steel’s answer asserted the doctrine of comparative fault against
Troup, Jolly Roofing and Belz; Troup denied that comparative fault was applicable to either Jolly
Roofing or Belz. Belz was never made a party to the litigation, and, ultimately, the trial court held
that Fischer Steel could not allege comparative fault against Belz and Jolly Roofing because both
were immune from suit under Tennessee Code Annotated sections 50-6-108 and 50-6-113.

A brief review of the pertinent workers’ compensation statutes would be helpful to our
analysis at this point. Under the Tennessee Workers’ Compensation Law, employers are required
to pay compensation for an employee’s personal injury or death by accident arising out of and in the
course of employment, without regard to fault. T.C.A. § 50-6-103(a). The employee’s remedies
under the Workers’ Compensation statutes are exclusive. Id. § 50-6-108(a). Thus, an employee
injured in an accident during the course of his employment may recover only workers’ compensation
benefits from his employer; the statutes bar the employee from filing a personal injury lawsuit for
damages against the employer. Valencia v. Freeland and Lemm Const. Co., 108 S.W.3d 239, 242
(Tenn. 2003).

Even when the employee’s injury is compensated under the workers’ compensation law,
however, the statutes expressly do not preclude the employee from filing a lawsuit “against some
person other than the employer to pay damages. . . .” T.C.A. § 50-6-112(a). If the employee
recovers damages from such a third party, the employer then has a subrogation lien against the
recovery for the amount of the workers’ compensation benefits paid. Id. § 50-6-112(c).

Under certain circumstances, a principal or intermediate contractor may be liable for workers’
compensation benefits when an employee of a subcontractor suffers on-the-job injuries arising from
an accident. The Act provides that the principal contractor shall be liable for workers’ compensation
benefits to an injured employee, to the same extent as the immediate employer, if that employee was

3
Fischer Steel does not appeal the trial court’s denial of its motion in limine as to Jolly Roofing.

-5-
injured while performing work for a subcontractor of the principal and while engaged in the subject
matter of the contract. Id. § 50-6-113(a); see Randolph v. Eastman Chem. Co., 180 S.W.3d 552,
557 (Tenn. Ct. App. 2005). The employee must first seek compensation from the immediate
employer. If the immediate employer does not fully compensate the employee under the Workers’
Compensation laws, the employee may then bring an action for such benefits against the principal
or intermediate subcontractor. T.C.A. § 50-6-113(c). If the employee receives full workers’
compensation benefits from the immediate employer, however, the employee is barred from
recovering any compensation benefits from the principal or intermediate contractor. Id. A principal
or intermediate contractor who pays workers’ compensation benefits to an employee may recover
the amount paid “from any person who, independently of this section, would have been liable to pay
compensation to the injured employee. . . .” Id. § 50-6-113(b).

Since the workers’ compensation statutes make the principal contractor liable for workers’
compensation benefits payable to a subcontractor’s employee, to the same extent as the
subcontractor, the principal contractor is not considered a “third party” subject to a common-law
action by the employee under Tennessee Code Annotated section 50-6-112. Thus, the principal is
also effectively “immune” from suit by the injured employee, even if the principal contractor did not
pay workers’ compensation benefits to the injured employee. See, e.g., Posey v. Union Carbide
Corp., 510 F. Supp. 1143 (M.D. Tenn. 1981), aff’d, 705 F.2d 833 (6th Cir. 1983); Manning v.
Rentenbach Eng’g Co., 625 S.W.2d 718 (Tenn. Ct. App. 1981).

Having set out the applicable law under the Tennessee Workers’ Compensation statutes, we
now turn to the Tennessee common law on comparative fault, to determine whether the trial court
erred in holding that the jury was precluded from assessing fault against the principal contractor,
Belz. Under the facts of this case, this presents an issue of first impression for this Court.

In 1992, in an attempt to more closely link liability with fault in negligence actions, the
Tennessee Supreme Court cast aside the deeply rooted legal doctrine of contributory negligence and
adopted the modified comparative fault system. McIntyre v. Balentine, 833 S.W.2d 52, 57 (Tenn.
1992). As a consequence, the doctrines of remote contributory negligence, last clear chance, and
joint and several liability were rendered obsolete. Id. at 57-58. Modified comparative fault requires
that, so long as the plaintiff’s negligence is less than the defendant’s negligence, the plaintiff may
recover damages commensurate with the proportion of the total negligence attributable to the
defendant being sued. Id. at 57. In considering the fault of a nonparty to the litigation, the
Tennessee Supreme Court stated:

[F]airness and efficiency require that defendants called upon to answer allegations
in negligence be permitted to allege, as an affirmative defense, that a nonparty caused
or contributed to the injury or damage for which recovery is sought. In cases where
such a defense is raised, the trial court shall instruct the jury to assign this nonparty
the percentage of the total negligence for which he is responsible.

-6-
Id. at 58. Thus, generally, a defendant accused of negligently causing the injuries of a plaintiff could
assert the fault of a nonparty in an effort to mitigate the defendant’s liability, even though the
plaintiff would not recover against that nonparty in the immediate litigation. Id.

However, in subsequent litigation involving the workers’ compensation laws, the Court
adopted a limited exception to the general rule that fault may be assessed against a nonparty. In
Ridings v. Ralph M. Parsons, Company, 914 S.W.2d 79 (Tenn. 1996), the Tennessee Supreme
Court considered whether a defendant could assert, as an affirmative defense, that a nonparty
employer caused or contributed to injuries suffered by a plaintiff in the course of his employment.
Ultimately, the Court ruled:

[O]nly a nonparty against whom the plaintiff has a cause of action can be made a
party. Since the plaintiff’s employer cannot be made a party to the plaintiff’s tort
action for personal injuries sustained in the course and scope of his employment, the
rationale of McIntyre, both as to principle and procedure, will not permit fault to be
attributed to the plaintiff’s employer.

Ridings, 914 S.W.2d at 82. Distinguishing between cause in fact and proximate or legal cause, the
Court held that “fault is limited to the plaintiff and those against whom the plaintiff has a cause of
action. . . .” Id. at 83.

In 1997, the Court entertained a challenge to Ridings in Snyder v. LTG Lufttechnische,
GmbH, 955 S.W.2d 252 (Tenn. 1997). In Snyder, the Court considered whether the defendant
manufacturer and seller in a products liability action could introduce evidence at trial that the
employer’s alteration, change, improper maintenance, or abnormal use of the defendants’ product
proximately caused or contributed to the plaintiff employee’s injuries. Snyder, 955 S.W.2d at 253.
Referring to the holding in Ridings, the Court concluded that the products liability defendants could
not introduce evidence that the employer proximately caused the plaintiff’s injuries. Id. However,
the Court held that the jury could nevertheless consider whether the employer’s alterations, changes,
improper maintenance, or other abnormal use of the defendants’ product was a cause in fact of the
plaintiff’s injuries:

[P]roducts liability defendants in a suit for personal injuries based on allegations of
negligence and strict liability in tort may introduce relevant evidence at trial that the
plaintiff’s employer’s alteration, change, improper maintenance, or abnormal use of
the defendant’s product was a cause in fact of the plaintiff’s injuries. Put another
way, the jury may consider all evidence relevant to the event leading up to the
incident that injured the plaintiff. The defendants may not, however, ask the jury to
assign fault to the employer. That is, the defendants may not take the legal position
that the employer’s actions were the legal cause of the plaintiff’s injuries. The jury
should be instructed that it may consider the actions of the employer only in assessing
whether the plaintiff has met his burden of establishing the elements necessary to
recover against the defendants. Also, the jury should be instructed that it may not,

-7-
 in making that determination, assess fault against the employer. Finally, the trial
judge should give an instruction that lets the jury know that the employer’s legal
responsibility will be determined at a later time or has already been determined in
another forum.

Id. at 256-57.

Both Snyder and Ridings were later scrutinized in Carroll v. Whitney, 29 S.W.3d 14 (Tenn.
2000). Carroll was a medical malpractice action arising out of the death of a fourteen-month-old
girl who was admitted to a hospital. The parents filed suit against the hospital and various medical
personnel, including two physicians who were residents. The residents were held to be immune from
suit because they were state employees. The plaintiffs voluntarily dismissed the lawsuit and re-filed
the suit against the non-immune defendants. Meanwhile, they filed a claim against the State in the
Claims Commission for the actions of the residents.

At the trial, the defendants argued that the residents’ negligence, rather than the defendants’
conduct, was the cause of the child’s death. At the conclusion of the evidence, the jury was
instructed to apportion fault among the defendants, the residents and the plaintiffs. The jury
allocated all of the fault to the nonparty residents, and the plaintiffs appealed. The Court granted the
appeal “to decide whether the trial court erred in allowing nonparties who were immune from suit
to appear on a jury verdict form.” Id. at 15.

The Carroll Court reviewed its earlier decision in Ridings v. Ralph M. Parsons Company,
wherein the Tennessee Supreme Court ruled that, because “only a nonparty against whom the
plaintiff has a cause of action can be made a party,” and an immune employer cannot be made a party
to the plaintiff’s personal injury action for damages arising out of events occurring in the scope of
his employment, fault could not be attributed to the immune employer. Ridings, 914 S.W.2d at 82.
The Carroll Court noted that the analysis in Ridings relied on the distinction in McIntyre v.
Ballentine between parties and nonparties. It explained:

Our conclusion [in Ridings] was supported by “[t]he rationale of McIntyre which
postulates that fault may be attributed only to those persons against whom the
plaintiff has a cause of action in tort.” A careful reading of McIntyre, however,
suggests that neither the holding of the case nor its underlying rationale limits the
attribution of fault only to persons against whom the plaintiff has a cause of action
in tort. Our treatment of nonparties in McIntyre simply examined a plaintiff’s ability
to recover damages from a nonparty, and our holding was limited accordingly.

Carroll, 29 S.W.3d at 18 (quoting Ridings, 914 S.W.2d at 81). Additionally, the Carroll Court
noted its holding in Snyder that a defendant could not introduce evidence that an immune employer
proximately caused or contributed to an injury, but the jury could consider any evidence relating to
the incident that would assist the trier of fact in determining whether the plaintiff met his burden of
proof as to “but-for” causation. Id.

-8-
 The Carroll Court observed that fairness required that defendants in a negligence action be
permitted to assert that a nonparty caused or contributed to the plaintiff’s injury, hearkening back
to the stated desire in McIntyre v. Ballentine, to achieve “a tighter fit between liability and fault.”
Id. at 16-17. Ultimately, the Carroll Court held under the facts of that case “that when a defendant
raises the nonparty defense in a negligence action, a jury may generally apportion fault to immune
nonparties.” Id. at 19. The Carroll Court stated pointedly that it was not overruling Ridings and
Snyder. Id. To reconcile Carroll with the earlier decisions, the Court explained that Ridings and
Snyder would “remain uniquely applicable with regard to the allocation of fault to employers in
workers’ compensation cases.” Id. This limited exception in workers’ compensation cases was
necessary, the Court found, to achieve fairness to the employee. Id. A successful employee’s
recovery would be reduced by operation of the Workers’ Compensation Act, as would the
employer’s obligation for compensation. Id. The Court observed that under section 50-6-112(a),
an employer who has paid full workers’ compensation benefits to its employee is entitled to a
subrogation lien against the employee’s recovery from any third party tortfeasor who may bear some
responsibility for the employee’s injuries. Id. The Court used a hypothetical to illustrate the
unfairness that would result from a decision not to retain a limited workers’ compensation exception:

An employee injured by a piece of equipment may have a cause of action for
products liability against the machine’s manufacturer. However, the manufacturer
could assert at trial that the employer altered the machine, and that this alteration
caused the employee’s injury. A jury, acting on this use of the nonparty defense,
could then allocate fault between the manufacturer and the immune employer,
thereby reducing the employee’s recovery. Subsequently, the employer could
exercise its right of subrogation with regard to the damages assessed against the
manufacturer and recovered by the employee. Essentially then, the employer’s right
of subrogation would defeat the employee’s statutory right to seek damages from
other tortfeasors.

Id. To avoid this result, the Court held that the rule in Snyder and Ridings would be retained only
in the workers’ compensation context. Id. However, in other comparative fault cases, the Court held
that “a jury may still allocate fault to other tortfeasors against whom a plaintiff, for any reason, could
not recover.” Id. (emphasis added). Therefore, the allocation of fault to immune nonparties was
permitted in most cases, with the application of Snyder and Ridings limited to workers’
compensation cases. Id. at 22.
We are left now to apply Carroll, Ridings, Snyder, and McIntyre to a workers’
compensation case in which the defendant seeks to allocate fault against a principal contractor, not
the plaintiff’s employer. First, it must be noted that Belz, as the principal contractor, is considered
immune from suit to the same extent as Troup’s employer, Jolly Roofing.4 See, e.g., Manning, 625

4
For this reason, we find Biscan v. Brown, 160 S.W .3d 462 (Tenn. 2005), cited by Troup, to be inapplicable.
In Biscan, the Court emphasized that the statute, T.C.A. § 57-10-101, did not make the person who furnishes alcohol
immune from suit; rather, the statute provides that the furnishing of an alcoholic beverage is not “the proximate cause
of injuries inflicted upon another by an intoxicated person.” Thus, Biscan is clearly distinguishable.

-9-
S.W.2d 718. In this case, however, Belz was not required to pay any portion of Troup’s workers’
compensation benefits, and therefore would, under no circumstances, have a subrogation lien against
Troup’s recovery from a third party such as Fischer Steel.5 Thus, while this, like Ridings and
Snyder, is a workers’ compensation case, the factor emphasized in Carroll, namely, the operation
of the employer’s subrogation lien against the plaintiff’s recovery, is not present. Therefore, while
a jury allocating fault between Fischer Steel and the immune principal contractor Belz could reduce
Troup’s recovery, Belz could not then “exercise its right of subrogation with regard to the damages
assessed against [Fischer Steel],” essentially defeating Troup’s “statutory right to seek damages from
other tortfeasors.” Carroll, 29 S.W.3d at 19. Indeed, the Carroll Court noted specifically that “even
in cases brought by employees against third parties, a jury may still allocate fault to other tortfeasors
against whom a plaintiff, for any reason, could not recover,” citing as an example a tortfeasor who
successfully raised the running of a statute of limitations as a defense.

In light of these factors, we must conclude that the jury should have been permitted to
allocate fault to the principal contractor, Belz. This holding accomplishes the stated objective in
McIntyre of achieving “a tighter fit between liability and fault,” while respecting the limited
exception in Ridings and Snyder, based on the reasoning in Carroll. For these reasons, we hold that
the trial court erred in denying Fischer Steel’s motion in limine to the general contractor in charge
of the construction site, Belz, and in precluding the jury from allocating fault to Belz.

In light of this holding, we reverse the trial court’s decision and vacate the judgment below.
Our holding pretermits all other issues raised on appeal.

The decision of the trial court is reversed, the judgment below is vacated, and the cause is
remanded for further proceedings not inconsistent with this Opinion. Costs of this appeal are
assessed against Plaintiff/Appellee Jerry T. Troup, for which execution may issue, if necessary.

___________________________________
HOLLY M. KIRBY, JUDGE

5
W e do not address the situation in which a principal contractor such as Belz paid all or part of the workers’
compensation benefits.

-10-