Pogue v. Oglethorpe Power Corp.

102 F.3d 1208

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 8, 1997
• Docket: 95-8084
• Status: Published

Opinion

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).