United States Court of Appeals,
Eleventh Circuit.
No. 95-8084.
David Keith POGUE; Denise Pogue, Plaintiffs-Appellants,
v.
OGLETHORPE POWER CORP.; Rome Employment Services, Inc.,
Defendants-Appellees.
May 9, 1996.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 4:93-00258-CV-HLM), Harold L. Murphy,
Judge.
Before KRAVITCH and CARNES, Circuit Judges, and HILL, Senior
Circuit Judge.
CARNES, Circuit Judge:
David and Denise Pogue brought this negligence action against
Oglethorpe Power Corporation ("Oglethorpe") and Rome Employment
Services, Inc. ("RES") after David Pogue was seriously injured
while working on a construction site. The district court granted
summary judgment in favor of the defendants, and the Pogues appeal.
This diversity case presents the question of whether a Georgia
"premise owner" is entitled to the statutory tort immunity provided
by O.C.G.A. § 34-9-11 if the premise owner has purchased a
"wrap-up" insurance policy to provide workers' compensation
insurance coverage for all on-site contractors and subcontractors.
Because no Georgia appellate court decisions provide clear,
controlling guidance to resolve the question, we certify it to the
Georgia Supreme Court.
I. BACKGROUND FACTS AND PROCEDURAL POSTURE
At the time of Pogue's injury, Oglethorpe was the majority
owner of a construction project, known as the "Rocky Mountain
Project" in Floyd County, Georgia. The purpose of the project was
to construct a pump storage facility in which water could be
collected from a series of reservoirs and released through a
hydroelectric power house to generate power at peak electrical
usage hours.
The principal contractor on the Rocky Mountain Project was
Power Plant Constructors ("Power Plant"). At the time Oglethorpe
contracted with Power Plant, Oglethorpe agreed to provide a
"wrap-up" insurance policy to provide workers' compensation
insurance coverage to all contractors and subcontractors on the
construction site. Oglethorpe obtained such a policy from Argonaut
Insurance Company, with Power Plant as the "named insured."
Oglethorpe's Corporate Safety and Loss Control Coordinator
established a safety program for the Rocky Mountain Project, hiring
four safety inspectors to represent Oglethorpe at the site. These
safety inspectors were, technically, "leased" from RES, an employee
leasing company that handled all administrative payroll and
benefits functions for the safety staff in exchange for a fee paid
by Oglethorpe. In all respects except for their payroll status,
the four on-site safety inspectors functioned as Oglethorpe
employees.
David Pogue began working for Power Plant in October 1991 as
a cement finisher. When Pogue began working at the site, the
powerhouse was about ten percent complete. The bottom level of
what was to be a seventeen story concrete structure had been laid.
As each concrete floor was poured, large openings were fabricated
in the floors to accommodate vents, wiring, and other structural
components. As a safety precaution, some, but not all, of the
openings were covered with pieces of plywood or plywood reinforced
with two-by-fours, or had temporary wooden railings placed around
them. Cement finishers, like Pogue, had no involvement in the
placement of these safety precautions.
On June 5, 1992, Pogue was working with another concrete
finisher in the powerhouse. As was fairly typical throughout the
powerhouse, there were several openings in the floor, some of which
were covered and some of which were not. As concrete finishers,
Pogue and the other man were responsible for patching any holes or
rough spots in the walls of the room in which they were working.
The work required the men to leave the room from time to time to
replenish their supply of finishing concrete, which was mixed in
another area. The pathway leading into and out of the room crossed
an opening that was covered with plywood. Both men had, by
necessity, walked on the plywood that covered this opening prior to
Pogue's injury.
At the time of Pogue's injury, he was entering the room,
having just replenished his supply of concrete. As he stepped onto
the plywood in his path, it suddenly and unexpectedly gave way
under Pogue's weight. Pogue fell forty-eight feet, sustaining
serious and disabling injuries. Pogue is currently receiving
workers' compensation benefits pursuant to his employment with
Power Plant. The policy through which these benefits are being
paid is the wrap-up policy purchased by Oglethorpe.
Pogue sued Oglethorpe and RES for negligent failure to provide
a safe place to work and negligent inspection. Pogue's wife sued
for loss of consortium. The district court granted summary
judgment to Oglethorpe on the basis that Oglethorpe was immune from
liability as one who "provides workers' compensation benefits to an
injured employee," pursuant to O.C.G.A. § 34-9-11. The district
court also granted summary judgment to RES on the ground that the
Pogues had presented no theory that would entitle them to recover
from RES. On appeal, the Pogues have abandoned their claim against
RES, and the only matter before this Court is the propriety of the
grant of summary judgment in favor of Oglethorpe.
II. ANALYSIS
The sole issue presented by this appeal is a question of law:
Is a "premise owner" entitled to the statutory tort immunity
provided by O.C.G.A. § 34-9-11 if the premise owner has purchased
a "wrap-up" insurance policy to provide workers' compensation
insurance coverage for all on-site contractors and subcontractors?
The district court held that immunity applies in such a
circumstance and granted summary judgment for Oglethorpe. We
review the district court's grant of summary judgment, and its
answer to questions of law, de novo. E.g., Bannum, Inc. v. City of
Fort Lauderdale, 901 F.2d 989, 996 (11th Cir.1990) (review of
summary judgment); Swint v. City of Wadley, 51 F.3d 988, 994 (11th
Cir.1995) (review of questions of law).
In Georgia, tort immunity is provided by statute to an
employer and certain other entities in exchange for liability for
the provision of workers' compensation benefits. The Georgia
Workers' Compensation Act provides, in relevant part:
The rights and the remedies granted to an employee by
this chapter shall exclude all other rights and remedies of
such employee ... provided, however, that no employee shall be
deprived of any right to bring an action against any
third-party tort-feasor, other than an employee of the same
employer or any person who, pursuant to a contract or
agreement with an employer, provides workers' compensation
benefits to an injured employee, notwithstanding the fact that
no common-law master-servant relationship or contract of
employment exists between the injured employee and the person
providing the benefits....
O.C.G.A. § 34-9-11(a) (Supp.1995) (emphasis added).
Oglethorpe argues that, although it is not Pogue's employer,
it is nonetheless entitled to tort immunity under O.C.G.A. § 34-9-
11 as "one who provides workers' compensation benefits to an
injured employee." Oglethorpe argues that it is entitled to this
immunity under the plain language of the statute because it
provided workers' compensation benefits to Pogue, albeit
indirectly, by purchasing the wrap-up insurance policy from
Argonaut Insurance Company that covered Pogue's employer, Power
Plant.
Oglethorpe relies principally on Fred S. James & Co. v. King,
160 Ga.App. 697, 288 S.E.2d 52 (1981), to support its
interpretation of the statute. In Fred S. James, an employee who
was injured on the job sued the insurance broker that his
self-insured employer had hired to administer its workers'
compensation program. Id. The employee claimed that his injury
resulted from a breach of the broker's contractual and common law
duty to inspect and warn of unsafe workplace conditions and that,
as a third-party tortfeasor, the broker was not immune from tort
liability under the workers' compensation statute. Id. 288 S.E.2d
at 52-53. The Georgia Court of Appeals rejected the employee's
argument. It held that a broker or service agency that contracts
with a self-insured employer to administer a workers' compensation
program is the alter ego of the employer and is entitled to the
same immunity as an insurer would be under the circumstances. Id.
at 53-54. The court explained:
We see no logical reason why a service agency which is
responsible for the administration of a self-insured
employer's workers' compensation program should not be
included under the umbrella of immunity provided by the Act.
By contract the service agency administers and facilitates the
payment of benefits by the self-insurer, and anyone who
"undertakes to perform or assist in the performance" of an
employer's statutory duties under the Workers' Compensation
Act should be immune from suit as a third party tortfeasor.
Id. at 54 (quoting Allen v. Employers Serv. Corp., 243 So.2d 454,
455 (Fla.App.1971)).
Oglethorpe argues that, like the insurance broker in Fred S.
James, it undertook to perform or assist in the performance of an
employer's (Power Plant's) statutory workers' compensation duties
by purchasing a policy of workers' compensation insurance to cover
Power Plant's workers' compensation liability. Therefore, reasons
Oglethorpe, it is entitled to the statutory tort immunity that the
Georgia Court of Appeals extended to the broker in Fred S. James.
The Pogues argue that Fred S. James is distinguishable
because: (1) unlike the employer in Fred S. James, Power Plant is
not a self-insurer and (2) unlike the broker in Fred S. James,
Oglethorpe is neither an insurer nor an administrative service
company, but is merely a project owner that contractually assumed
Power Plant's statutory duty to provide workers' compensation
coverage to Power Plant employees. The Pogues further argue that
any remaining doubt on the issue is dispelled by a subsequent
Georgia Supreme Court case, George v. Ashland-Warren, Inc., 254 Ga.
95, 326 S.E.2d 744 (1985).
In Ashland-Warren, an employee of the Georgia Department of
Transportation ("DOT"), was working as a project engineer on a road
construction project when he was struck and killed by a piece of
earth-moving equipment. Id. 326 S.E.2d at 745. The equipment was
owned and operated by Ashland-Warren, Inc., the general contractor
on the project. Id. The deceased employee's widow recovered
workers' compensation benefits from the DOT. Pursuant to an
indemnification clause in the construction contract, the DOT was
reimbursed by Ashland-Warren for these payments. Id. In addition
to securing workers' compensation benefits from the DOT, the widow
brought a wrongful death action against Ashland-Warren. Ashland-
Warren defended on the basis that it was entitled to statutory
workers' compensation immunity by virtue of its indemnification
agreement with the DOT. Id. Ashland-Warren argued that, through
the indemnification arrangement, it "provide[d] workers'
compensation benefits to an injured employee" within the meaning of
O.C.G.A. § 34-9-11. Id. at 745-46.
The Georgia Supreme Court rejected Ashland-Warren's argument,
explaining the meaning and intent of the "provides workers'
compensation benefits" provision of O.C.G.A. § 34-9-11, as follows:
This provision was intended to provide tort immunity to
workers' compensation insurers. The workers' compensation act
generally is to be liberally construed in favor of the
employee. Thus we reject the construction proffered by
Ashland-Warren because it would operate in derogation of the
plaintiff's common law right of action.
Ashland-Warren does not come within the carefully worded
terms of this exclusion. Ashland-Warren did not "provide
workers' compensation benefits to an injured employee" or his
family; it reimbursed DOT for its outlay. Ashland-Warren's
agreement was to indemnify and hold DOT harmless; it is not
an insurance company and its agreement did not meet the
requirements of a workers' compensation insurance policy.
While such agreement would benefit the employer by providing
reimbursement and would, according to Ashland-Warren, benefit
the third party tortfeasor by providing tort immunity, it
would not benefit the injured employee at all as a workers'
compensation insurer would. Rather, it would in many
instances take away the employee's cause of action against
third-party tortfeasors which is so carefully reserved to the
employee by OCGA § 34-9-11 itself. The tort immunity created
by OCGA § 34-9-11 protects the employer of the injured
employee, employees of that employer, and the employer's
workers' compensation insurer. Ashland-Warren is not
included.
Id. at 745-46 (emphasis added) (citations and footnote omitted).
The court added, "[W]e reject the contention that a third-party
tortfeasor may create tort immunity on its own behalf by agreeing
to indemnify an employer for compensation benefits paid to its
employee...." Id. at 746.
Pogue argues that this case falls within the rule of Ashland-
Warren in that there is no substantive difference between a
third-party tortfeasor attempting to create tort immunity on its
own behalf by agreeing to indemnify an employer for workers'
compensation benefits and a third-party tortfeasor attempting to
create tort immunity on its own behalf by agreeing to pay the
premiums on an employer's workers compensation insurance policy.
Pogue argues that, under Ashland-Warren, Oglethorpe is not entitled
to immunity under O.C.G.A. § 34-9-11 because Oglethorpe is neither
"the employer of the injured employee," an "employee[ ] of that
employer," nor "the employer's workers' compensation insurer." See
id. at 746.
Additionally, Pogue points to Yoho v. Ringier of America,
Inc., 263 Ga. 338, 434 S.E.2d 57 (1993), in which the Georgia
Supreme Court stated:
Only an entity who is secondarily liable for workers'
compensation benefits ... is consequently entitled to tort
immunity under OCGA § 34-9-11.... [I]t is only a "contractor"
who is secondarily liable for workers' compensation benefits
and who is, therefore, entitled to tort immunity. An owner
who is merely in possession or control of the premises would
not be subject to workers' compensation liability as a
statutory employer and would not be immune from tort
liability.
Id. 434 S.E.2d at 59. Pogue argues that Oglethorpe, as an owner
and not a contractor, would not be secondarily liable for the
workers' compensation benefits of Power Plant employees.
Therefore, Pogue reasons, Oglethorpe is not entitled to tort
immunity under the rule of Yoho.
Oglethorpe responds to Pogue's arguments by arguing (1) that
the Ashland-Warren court specifically declined to overrule Fred S.
James, see Ashland-Warren, 326 S.E.2d at 746 n. 1, and (2) that
Yoho was an "enterprise liability" decision that, despite its
sweeping language, has no bearing on this case.
Determining whether this case falls within the rule of Fred
S. James or within the rule of Ashland-Warren is problematic.
Taken alone, the Ashland-Warren decision would appear to deny tort
immunity to Oglethorpe, because Oglethorpe is not an "employer of
the injured employee," an "employee[ ] of that employer," or "the
employer's workers' compensation insurer." See Ashland-Warren, 326
S.E.2d at 746. However, the Ashland-Warren court expressly
declined to overrule Fred S. James, see id. 326 S.E.2d at 746 n. 1,
and under Fred S. James Oglethorpe might be entitled to tort
immunity as one who " "undertakes to perform or assist in the
performance' of an employer's statutory duties under the Workers'
Compensation Act," Fred S. James, 288 S.E.2d at 54 (quoting Allen
v. Employers Serv. Corp., 243 So.2d 454, 455 (Fla.App.1971)). Nor
do we find a clear answer in the Yoho decision because, unlike
Yoho, this is not an ordinary "enterprise liability" case. Unlike
the defendant in Yoho, Oglethorpe is not "[a]n owner who is merely
in possession or control of the premises," see Yoho, 434 S.E.2d at
59 (emphasis added). In contrast to Yoho, in this case there is a
connection, albeit an indirect one, between the defendant and the
payment of the plaintiff's workers' compensation benefits. In
summary, the relevant appellate Georgia case law leaves us with
substantial doubt about the proper resolution of the question
presented by this case.
The presence or absence of statutory tort immunity under the
facts of this case has significant public policy ramifications, and
we are in doubt about the matter. When such doubt exists as to the
application of state law, a federal court should certify the
question to the state supreme court to avoid making unnecessary
state law guesses and to offer the state court the opportunity to
interpret or change existing law. Mosher v. Speedstar Div. of AMCA
Int'l, Inc., 52 F.3d 913, 916-17 (11th Cir.1995). "Only through
certification can federal courts get definitive answers to
unsettled state law questions. Only a state supreme court can
provide what we can be assured are "correct' answers to state law
questions, because a state's highest court is the one true and
final arbiter of state law." Sultenfuss v. Snow, 35 F.3d 1494,
1504 (11th Cir.1994) (en banc) (Carnes, J., dissenting), cert.
denied, --- U.S. ----, 115 S.Ct. 1254, 131 L.Ed.2d 134 (1995).
While we could make an Erie1 guess as to the applicability of
tort immunity under O.C.G.A. § 34-9-11 to this case, the more
prudent course of action is to submit the issue to the Georgia
Supreme Court. Accordingly, we respectfully submit certify the
following question of law to the Supreme Court of Georgia:
Is a "premise owner" entitled to the statutory tort immunity
provided by O.C.G.A. § 34-9-11 if the premise owner has
purchased a "wrap-up" insurance policy to provide workers'
compensation insurance coverage for all on-site contractors
and subcontractors?
Our statement of the question is not meant to limit the scope of
inquiry by the Supreme Court of Georgia. On the contrary:
[T]he particular phrasing used in the certified question is
not to restrict the Supreme Court's consideration of the
problems involved and the issues as the Supreme Court
perceives them to be in its analysis.... This latitude
extends to the Supreme Court's restatement of the issue or
issues and the manner in which the answers are to be given....
Martinez v. Rodriguez, 394 F.2d 156, 159 n. 6 (5th Cir.1968). The
entire record in this case, together with copies of the briefs of
the parties, is transmitted herewith.
QUESTION CERTIFIED.
III. CONCLUSION
We AFFIRM the district court's grant of summary judgment in
favor of Rome Employment Services, Inc. With respect to Oglethorpe
Power Corp, we CERTIFY the state law question of whether the tort
immunity provided by O.C.G.A. § 34-9-11 applies to the
circumstances of this case, and we WITHHOLD any decision about the
district court's grant of summary judgment in favor of Oglethorpe
until we receive the answer to that certification.
1
Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82
L.Ed. 1188 (1938).