In the Supreme Court of Georgia



                                      Decided:     Novemberr 16, 2015


    S15Q1222. WALKER et al. v. TENSOR MACHINERY, LTD. et al.


      BLACKWELL, Justice.

      Just a few months ago, we held in Zaldivar v. Prickett, 297 Ga. 589 (774

SE2d 688) (2015), that OCGA § 51-12-33 (c) — which directs the trier of fact

in certain cases to “consider the fault of all persons or entities who contributed

to the alleged injury or damages” — refers to the “fault” of “all persons or

entities who have breached a legal duty in tort that is owed with respect to the

plaintiff, the breach of which is a proximate cause of the injury sustained by the

plaintiff . . . , regardless of whether such tortfeasor would have actual liability

in tort to the plaintiff.” Zaldivar, 297 at 600 (1) (footnote omitted). “[T]he

apportionment statute permits consideration, generally speaking, of the ‘fault’

of a tortfeasor, notwithstanding that he may have a meritorious affirmative

defense or claim of immunity against any liability to the plaintiff.” Id. at 598 (1)

(footnote omitted). Before we issued our decision in Zaldivar, the United States
District Court for the Northern District of Georgia certified the following

question to us:

      Does OCGA § 51-12-33 (c) allow the jury to assess a percentage of
      fault to the non-party employer of a plaintiff who sues a product
      manufacturer and seller for negligence in failing to warn about a
      product danger, even though the non-party employer has immunity
      under OCGA § 34-9-11?

Unless there is a compelling reason to treat nonparty employers with immunity

under the Workers’ Compensation Act differently than nonparties with other

defenses or immunities against liability, Zaldivar requires an affirmative answer

to the certified question. We see no such compelling reason, and so, we adhere

to Zaldivar and respond to the District Court in the affirmative.

      We begin with a brief summary of this litigation. Jock L. Walker was

injured at work in August 2010 while he operated a machine that had been

designed and manufactured by Tensor Machinery, Ltd. and Tensor Fiber Optic

Technologies, Ltd. (collectively, “Tensor”). After reaching a settlement with his

employer for workers’ compensation benefits, Walker sued Tensor, alleging that

it negligently failed to warn him of safety-related defects in the machine.1

      1
          Walker’s wife also sued Tensor for loss of consortium. For the purposes of this
opinion, however, there is no need to distinguish between Walker and his wife, and so, we
refer to both simply as “Walker.”

                                           2
Tensor then gave notice under OCGA § 51-12-33 that it intended to ask the trier

of fact in this case to assign some responsibility for Walker’s injuries to his

employer. In response, Walker filed a motion in limine to exclude all evidence

concerning fault on the part of his employer, asserting that OCGA § 51-12-33

does not allow a plaintiff to apportion fault to a nonparty employer that has

immunity from liability in tort by virtue of the exclusive remedy provision of the

Workers’ Compensation Act, OCGA § 34-9-11.

      Although our opinion in Zaldivar did not focus on this issue, we did have

occasion to speak of it in our opinion. The defendant in that case, like Tensor,

sought to assign some responsibility to the plaintiff’s employer, and we noted

that if the plaintiff had sued his employer (for negligent entrustment),

      he might well have lost as a result of comparative negligence . . . or
      as a result of some other affirmative defense (such as the exclusive
      remedy provisions of the Workers’ Compensation Act). But an
      affirmative defense or immunity does not eliminate “fault” or cut
      off proximate cause, it only bars liability notwithstanding that the
      “fault” of the tortfeasor was a proximate cause of the injury in
      question.

Zaldivar, 297 Ga. at 604 (2) (emphasis supplied). Moreover, two of the foreign

cases upon which we relied in Zaldivar specifically approved consideration of

the nonparty employer’s fault under similar apportionment statutes

                                        3
notwithstanding the exclusive remedy provisions of the applicable workers’

compensation statutes. Id. at 599 (1) (citing Williams v. White Mountain Constr.

Co., 749 P2d 423, 429 (III) (B) (Colo. 1988), and Sedgwick Ins. v. CDS, Inc.,

47 FSupp.3d 536, 549 (B) (2) (E.D. Mich. 2014)). Georgia commentators have

drawn similar conclusions. See Franklin E. Jenkins III & Wallace Miller III, Ga.

Automobile Insurance Law § 48:3 (i) (2014-2015 ed.) (“[t]he rationale in

Barnett v. Farmer, [308 Ga. App. 358, 362 (2) (707 SE2d 570) (2011) (physical

precedent that Zaldivar, 297 Ga. at 598 (1) — which also cited this treatise —

relied on as persuasive Georgia authority)] . . . should extend to virtually any

form of tort immunity, including . . . workers’ compensation as [an] exclusive

remedy”); Thomas A. Eaton, Who Owes How Much? Developments in

Apportionment and Joint and Several Liability under OCGA § 51-12-33, 64

Mercer L. Rev. 15, 33, n. 104 (IV) (A) (2012) (“employees who are injured on

the job and bring tort actions against third parties will now have their recovery

against third parties reduced by any percentage of fault assigned to the

plaintiffs’ employers” even though their liability is limited by workers’

compensation) (quoted in Jenkins & Miller, supra at 48:3 (i), n. 38).



                                       4
       Other jurisdictions have recognized that “[i]t is accepted practice to

include all tortfeasors in the apportionment question. This includes . . . persons

alleged to be negligent but not liable in damages to the injured party such as in

the third-party cases arising in the work[ers’] compensation area.” Sullivan v.

Scoular Grain Co. of Utah, 853 P2d 877, 882 (I) (D) (Utah 1993) (quoting

Carroll R. Heft & C. James Heft, Comparative Negligence Manual § 8.100, at

14 (rev. ed. 1992)). See also Fabre v. Marin, 623 S2d 1182, 1187 (Fla. 1993)

(quoting an earlier edition of the same treatise); 57B AmJur2d Negligence §

1037 (database updated August 2015). More specifically, this rule is followed

in jurisdictions that have apportionment schemes similar to that of OCGA § 51-

12-33, in which, consistent with the analysis in Zaldivar, 297 Ga. at 597 (1),2 a

meritorious affirmative “defense or immunity may cut off liability, [but] a


       2
        In Zaldivar, 297 Ga. at 600, n. 7 (1), we distinguished jurisdictions, like Tennessee,
“without statutory authority for the assignment of fault to nonparties.” (Citations omitted;
emphasis in original.) For the same reason, we do not consider Carroll v. Whitney, 29 SW3d
14, 19 (Tenn. 2000), to be persuasive authority for departing from the general rule that
responsibility should be assigned to at-fault employers under apportionment statutes. See
Ocasio v. Fed. Express Corp., 33 A3d 1139, 1148 (II) (A) (3) (a) (N.H. 2011) (declining to
follow Carroll for the proposition that immune employers should be exempt under New
Hampshire’s apportionment statute). Moreover, it does not appear that in Tennessee, any
potential unfairness is mitigated, as in Georgia, by a workers’ compensation statute that
allows subrogation, which we discuss below, “only if the injured employee has been fully
and completely compensated . . . .” OCGA § 34-9-11.1 (b).

                                              5
tortfeasor is still a tortfeasor, and nothing about his defense or immunity” means

that he was not at fault by his commission of a tort that was the proximate cause

of the plaintiff’s injury:

      Immunity from liability does not prevent an immune party from
      acting or omitting to act. Rather, immunity shields that party from
      any liability stemming from that act or omission. There is nothing
      logically or legally inconsistent about allocating fault but shielding
      immune parties from liability for that fault. And there is no reason
      to imagine that the Legislature did not intend fault to be allocated
      against immune parties, insofar as that allocation can be of no
      detriment to those parties.

Mack Trucks v. Tackett, 841 S2d 1107, 1114 (III) (a) (Miss. 2003) (footnote

omitted). See also Ocasio v. Fed. Express Corp., 33 A3d 1139, 1147 (II) (A) (3)

(a) (N.H. 2011) (“[A]llocating fault to an employer does not destroy, or even

affect, the employer’s immunity from suit. Immunity does not mean that a party

is not at fault; it simply means that the party cannot be sued.” (Citation and

punctuation omitted)); Mills v. MMM Carpets, 1 Cal. Rptr. 3d 813, 818 (Ct.

App. 1991) (“the negligent employer’s fault in a case like this one is measured,

not in order to impose tort liability on it, but to determine the comparative fault

and commensurate liability of a defendant in the action”).




                                        6
      Nevertheless, Walker says, the allocation of fault under OCGA § 51-12-33

(c) to nonparty employers with immunity under the Workers’ Compensation Act

would upset the careful balance that the General Assembly struck in the Act

between the respective interests of employers and employees, and for that

reason, Walker urges, OCGA § 51-12-33 (c) cannot reasonably be understood

to permit such an allocation of fault. We disagree. The General Assembly has

determined that the exclusive remedy provision and limited benefits of the

workers’ compensation system, OCGA § 34-9-11, are “the quid pro quo for

workers receiving a guarantee of prompt benefits for work-related injuries

without regard to fault or common-law defenses and without the delay inherent

in tort litigation.” Doss v. Food Lion, 267 Ga. 312, 313 (2) (477 SE2d 577)

(1996). “Allocating fault to an immune employer does not disturb this quid pro

quo relationship between employee and employer or the legislative policy

underlying it. A plaintiff may still obtain benefits, without having to prove the

employer’s negligence, and the employer is still immune from liability.” Ocasio,

33 A3d at 1147 (II) (A) (3) (a).

      The result of immunizing employers from fault as well as from
      liability is that third parties pick up the tab for the employer’s fault,
      potentially paying more than their share in order to make up for the

                                         7
      excluded employer. . . . The question becomes whether the injured
      plaintiff must see his potential recovery diminished by an
      assignment of fault to his immune employer or whether a third party
      defendant may be made to respond in damages in an amount that
      exceeds that defendant’s proportionate share of fault in causing the
      injury. . . . [T]he more equitable result is to permit allocation of
      fault to the exempt employer. While this diminishes the injured
      party’s ultimate recovery in the tort action, the injured party has
      already obtained or may, post verdict, seek recovery under the
      compensation law from his employer. This right of recovery under
      workers’ compensation law is specifically intended to replace the
      previously-existing common law right of recovery against the
      employer in tort. To immunize employers from fault allocation in
      third-party tort suits would go against the spirit of the bargain
      between employers and employees that underlies workers’
      compensation; instead, the third party would pay the employer’s
      cost of compensation, and the employee would have the possibility
      of recovering in tort for his employer’s fault, since that would then
      be allocated to the third party. This certainly would benefit
      employers, and to some extent plaintiffs — but third parties should
      not be assessed to supplement our system of workers’
      compensation.

Mack Trucks, 841 S2d at 1115 (III) (a) (citations and emphasis omitted). See

also Sullivan, 853 P2d at 882 (I) (D) (“There is nothing inherently fair about a

defendant who is, for example, 10% at fault paying 100% of the loss.” (Citation

and punctuation omitted)); Restatement (Third) of Torts: Apportionment Liab.

§ B19 cmt. l (2000) (“The adoption of several liability, coupled with the

submission of the nonparty employer for assignment of comparative


                                       8
responsibility, as provided in this Section, ends the unfairness to independent

tortfeasors. Each tort defendant is only responsible for its comparative share of

plaintiff’s damages.”).

       Nor would the assignment of fault to a nonparty employer eviscerate the

role that subrogation plays in the workers’ compensation system, as Walker

suggests. Under OCGA § 34-9-11.1 (b), if an employer or its insurer has at least

partially paid its workers’ compensation liability to an injured employee, the

employer or insurer may have a right of subrogation against damages that the

employee recovers from a third party. But this right of subrogation is limited to

the amount of certain benefits paid to the employee, and importantly, it is

available only “if the injured employee has been fully and completely

compensated, taking into consideration both the benefits received under this

chapter and the amount of the recovery in the third-party claim, for all economic

and noneconomic losses incurred as a result of the injury.”3 OCGA § 34-9-11.1



       3
         We observe at this point that in some jurisdictions, unlike Georgia, “employers may
obtain full subrogation from the tort award, even though that award has been reduced by
virtue of the employers’ own fault. While this result has been recognized as inequitable, one
court[, Sullivan, 853 P2d at 883 (I) (D),] felt constrained to comply with a clear, if outdated,
statutory mandate.” Restatement (Third) of Torts: Apportionment Liab. § B19, reporter’s
note to cmt. l (2000).

                                               9
(b). The purposes of these provisions are to provide “a means for recouping the

employer’s loss and to prevent a double recovery by the employee and to do

substantial justice,” Southern R. Co. v. Overnite Transp. Co., 223 Ga. 825, 830

(6) (158 SE2d 387) (1967), while assuring “that the injured employee first be

made whole.” North Bros. Co. v. Thomas, 236 Ga. App. 839, 840 (513 SE2d

251) (1999).

      No doubt, the right of subrogation may be further limited in some cases

by an allocation of fault to a nonparty employer. After all, if fault is assigned to

the nonparty employer, it will reduce the amount that the injured employee

recovers in tort, thereby lessening the likelihood that the employee will receive

enough compensation (apart from his workers’ compensation benefits) to give

the employer a subrogation claim. There is nothing, however, about this reality

that is so inequitable for employers that it would lead us to conclude that OCGA

§ 51-12-33 (c) was not meant to permit the allocation of fault to nonparty

employers. After all, the idea that an employer should bear some cost (still

limited, of course, to its liability for workers’ compensation benefits) for its own

fault — as opposed to that cost being borne by another tortfeasor — is not an

inherently unfair one. And for employers without fault, the allocation of fault

                                        10
to employers under OCGA § 51-12-33 (c) does not affect their right of

subrogation in the least.4 The allocation of fault to nonparty employers is not

inconsistent with the limited right of subrogation under the Workers’

Compensation Act.5




       4
         We concede that an employer not really at fault might still be assigned fault in a tort
case brought by the employee against a third party — a case to which the employer is not a
party — and that the employer may suffer a limitation of its right of subrogation as a result.
The possibility that the right of the employer to subrogation might be effectively impaired
by proceedings to which the employer is not a party exists whether or not fault can be
allocated to a nonparty employer. Indeed, that is exactly why the employer or its insurer has
a statutory right to intervene in the proceedings for the purpose of protecting its right to
subrogation. See OCGA § 34-9-11.1 (b).
       5
          We also observe that the enactment of OCGA § 51-12-33 (c) did not affect the
subrogation rights of employers in cases in which the plaintiff’s recovery is reduced by his
own comparative negligence. It is true that, under OCGA § 51-12-33 (a) and (g), the
plaintiff’s negligence reduces or eliminates his recovery in tort, thereby reducing the amount
of the employer’s subrogation in the same way that assignment of fault to the employer
effectively limits its subrogation rights. But comparative negligence had the same effect on
the employer’s right to subrogation before the apportionment statute was enacted in 2005.
Under Homebuilders Assn. of Ga. v. Morris, 238 Ga. App. 194, 196-197 (518 SE2d 194)
(1999), comparative negligence could not be considered when determining whether the
plaintiff had been fully and completely compensated for his losses pursuant to OCGA § 34-9-
11.1 (b), and so the amount of the employer’s subrogation normally was less than it would
have been if there had not been any comparative negligence and instead a higher percentage
of fault had been assigned to the non-employer defendant. We conclude that assignment of
responsibility under the apportionment statute to either an at-fault employer or a negligent
plaintiff, and the corresponding effect on the employer’s right to subrogation, is consistent
with the requirements of both the apportionment and the workers’ compensation statutes,
resulting in a balanced and substantial justice in keeping with the purposes of the workers’
compensation system. See Southern R., 223 Ga. at 830 (6); North Bros., 236 Ga. App. at 840.

                                              11
      Walker argues as well that the allocation of fault to a nonparty employer

under OCGA § 51-12-33 (c) would expose employers to new and substantial

litigation costs, against which, he says, they previously were shielded by virtue

of their immunity from tort liability under the Workers’ Compensation Act. We

disagree. Under the exclusive remedy provisions of the Workers’ Compensation

Act, the employer entirely avoids having to defend against tort litigation and

remains immune from tort liability regardless of any assignment of fault

pursuant to OCGA § 51-12-33 (c). No doubt, an employer may have to respond

to requests for discovery that are relevant to its fault with respect to an injury to

its employee, but employers long have been subject to discovery for other

purposes in cases in which employees have been injured on the job. To begin,

an employer is always subject to the discovery procedures of the Civil Practice

Act in any administrative proceeding regarding a claim for workers’

compensation benefits. OCGA § 34-9-102 (d). More significant, even before

enactment of OCGA § 51-12-33 (c), employers already were subject to nonparty

discovery, see OCGA § 9-11-34 (c), related to claims by an employee against

other alleged tortfeasors for workplace injuries, such as Walker’s product

liability claims in this case against Tensor. Regardless of whether any fault

                                         12
could be assigned to the employer, parties to such cases might be expected to

demand discovery of business records and other documents of an employer,

depositions and trial testimony of managers and other employees, and perhaps

access to the workplace for evaluation and testing of equipment. In a products

liability action such as this, those discovery requests could have numerous

purposes other than to discover fault on the part of the employer: supporting or

refuting the elements of the employee’s tort action, as well as the potential

defenses available to the non-employer defendant against the employee’s action,

including the statute of repose, legal accident, contributory negligence,

assumption of the risk, federal preemption, and the learned intermediary rule.

See, e.g., Charles R. Adams III, Ga. Law of Torts §§ 25:8 through 25:10

(database updated December 2014); J. Kennard Neal, Ga. Products Liability

Law, Chap. 11 (4th ed., database updated April 2015). The wide range of facts

that the parties may seek to discover from the employer could include the dates

that an allegedly defective product was delivered and installed in the workplace,

warnings and directions about the use of the product, the maintenance history

and any modifications of the product, other incidents concerning the product of

which the employee would or could have been aware at the time of his injury,

                                       13
the work and disciplinary history of the employee, his training and experience

with the product at issue and similar products, any misuse of the product by the

employee, his condition just prior to the injury, and the notice that he provided

about his injury. The allocation of fault to nonparty employers simply adds one

additional subject about which employers may be subject to nonparty discovery.

      Accordingly, we see no reason to limit our interpretation of OCGA § 51-

12-33 (c) in Zaldivar and prohibit a trier of fact from assigning fault to a

nonparty employer that has immunity under the exclusive remedy provisions of

the Workers’ Compensation Act. As we explained in Zaldivar, “the

apportionment statute permits consideration, generally speaking, of the ‘fault’

of a tortfeasor, notwithstanding that he may have a meritorious affirmative

defense or claim of immunity against any liability to the plaintiff.” 297 Ga. at

598 (1) (footnote omitted). “[W]e do not conclude that immune employers

should be treated differently than other immune tortfeasors.” Ocasio, 33 A3d

1148 (II) (A) (3) (a). We, therefore, answer the certified question in the

affirmative.

      Certified question answered. All the Justices concur, except Benham and

Hunstein, JJ., who dissent.

                                       14
    S15Q1222. WALKER et al. v. TENSOR MACHINERY, LTD. et al.


      BENHAM, Justice, dissenting.

      In my opinion, this case calls on the Court to reconsider and refine the

holding in our recent opinion Zaldivar v. Prickett, 297 Ga. 589 (774 SE2d 688)

(2015). In Zaldivar, this Court granted a petition for certiorari and requested the

parties to brief one particular issue: whether OCGA § 51-12-33 (c) permits the

defendant in a tort action involving an automobile collision to name, as a

nonparty whose fault should be apportioned to reduce the total damages for

which the defendant is liable, that party who allegedly negligently entrusted to

the plaintiff the vehicle plaintiff was driving. In the Zaldivar case, that nonparty

was the plaintiff’s employer. The parties in Zaldivar, however, were not asked

to address the unique issues surrounding whether the fault of a nonparty who is

an employer, immune from tort liability pursuant to the worker’s compensation

scheme of this state, should be included in the jury’s apportionment of damages

pursuant to the apportionment statute. Accordingly, the parties did not brief

these issues or address them in their arguments to the Court. Likewise, the

majority opinion in Zaldivar focused primarily on whether negligent
entrustment of a vehicle to a plaintiff by a nonparty is a tort against the plaintiff

that can be a proximate cause of plaintiff’s injury. The workers’ compensation

issues, however, are front and center in the case currently before us.

      When construing subsection (c) of the apportionment statute in

conjunction with OCGA § 34-9-11, the exclusive remedy provision of Georgia’s

workers’ compensation law, I conclude that a jury is not permitted to assess a

percentage of fault to a non-party employer of a plaintiff who sues a product

manufacturer and seller for negligence in failing to warn about a product danger.

I am convinced that the relevant terms of the workers’ compensation law

provides the “compelling reason” sought by the majority opinion in this case to

treat nonparty employers with immunity from suit differently from other

nonparties against whom apportionment may be assessed. Consequently, I

believe the answer to the certified question is no.        As I did in Zaldivar, I

respectfully dissent. See Zaldivar, supra, 297 Ga. at ____, Benham, J.,

dissenting. In my opinion, the majority does not properly consider or analyze

the unique aspects of Georgia’s workers’ compensation scheme and the

unintended consequences of such an application of the apportionment rule upon

plaintiffs in tort actions who also have claims against their employer which are

                                          2
subject to the workers’ compensation law, and also upon nonparty employers

who are subject to the terms of that law.

       Compliance with Georgia workers’ compensation law is compulsory. The

employer, as defined by the workers’ compensation law, is subject to both civil

and criminal penalties for failure to provide coverage of the benefits to

employees required by that law.1 The benefits set forth in the law are the

exclusive remedy available to an employee for a work-related “injury,” as that

term is defined by statute.2 Those benefits are limited.3 As a trade-off, the

workers’ compensation law grants a no-fault remedy to the employee for

covered injuries. The quid pro quo established between the interests and rights

given up and the benefits received by both the employer and the employee is the

underlying policy of the law. See Samuel v. Baitcher, 247 Ga. 71, 72 (274 SE2d

327) (1981).

       An employee who sustains an injury that is compensable under the

workers’ compensation law may, as in this case, pursue a claim for damages

       1
           See OCGA §§ 34-9-126 and 34-9-18.
       2
           See OCGA §§ 34-9-1 (4) and 34-9-11.
       3
          For example, pain is not compensable unless that pain itself results in a physical
disability. See Bouldware v. Delta Corp., 160 Ga. App. 100 (286 SE2d 333) (1981).

                                             3
against a third party. One of the rights conferred to the employer under the

workers’ compensation law is the right of subrogation against the employee’s

recovery of damages. Pursuant to OCGA § 34-9-11.1 (b), once an employer’s

liability under the workers’ compensation law has been at least partially paid the

employer or its insurer is granted a right of subrogation against the employee’s

recovery of damages from a third party, up to the amount of workers’

compensation benefits paid to the employee.4

       However,

       the employer’s or insurer’s recovery under this Code section shall
       be limited to the . . . amount of . . .benefits . . . paid under this
       chapter and shall only be recoverable if the injured employee has
       been fully and completely compensated, taking into consideration
       both the benefits received under this chapter and the amount of the
       recovery in the third-party claim, for all economic and noneconomic
       losses incurred as a result of the injury.

Id. Just as in the case of subrogation by an automobile insurance carrier or a

medical insurer, “the injured party’s employer [is] not permitted to seek

reimbursement from the injured party unless and until the amount of settlement

       4
           In fact, this Code section grants the employer the right to intervene in an action
brought by the employee against a third party in order to protect its subrogation right, and
even the right to assert the employee’s claim against the third party in an action brought
either in the employer’s name or the name of the employee, if the employee does not file his
or her own action within a specified period of time. Id. at (c).

                                             4
received by or the judgment awarded to the injured party exceeds the injured

party’s economic and noneconomic damages.” Thurman v. State Farm Mut.

Auto. Inc. Co., 278 Ga. 162, 164 (598 SE2d 448) (2004); see also Ga. Electric

Membership Corp. v. Garnto, 266 Ga. App. 452, 453 (597 SE2d 527) (2004).

That is, subrogation is permitted only if the injured employee will be left whole

after the workers’ compensation benefits are subtracted from the amount

recovered from the third party. Such a determination is to be made by the trial

court, not a jury. See Canal Ins. Co. v. Liberty Mut. Ins. Co., 256 Ga. App. 866,

872-873 (2) (570 SE2d 60) (2002).

      In determining whether an injured employee will be left “fully and

completely compensated” after subrogation by the employer, the trial court is

to consider the issue of full compensation as that term is used in the subrogation

statute of the workers’ compensation law, not pursuant to the general principals

of tort law, by which compensation is diminished as a result of defenses

available to the defendant. Id. at 872 (2) (570 SE2d 60) (2002), quoting

Homebuilders Assn of Ga. v. Morris, 238 Ga. App. 194, 196 (518 SE2d 194)

(1999). That is, OCGA § 34-9-11.1 speaks of full compensation for the

employee’s economic and noneconomic damages, and “does not direct courts

                                        5
to take into account the employee’s contributory/comparative negligence or

assumption of the risk, and we must assume the omission was intentional.”

Homebuilders Ass’n of Ga., supra, 238 Ga. at 196. By the same reasoning, full

compensation for the employee’s damages does not refer to the damages

awarded against the nonparty defendant after the defendant’s liability has been

diminished by the apportionment rule of OCGA § 51-12-33 (c). Only when the

amount awarded to the employee plaintiff plus the value of the workers’

compensation benefits received exceeds the injured employee’s full economic

and noneconomic damages will the employer or its insurer be permitted to

recover some or all the benefits it has paid pursuant to the subrogation statute.

       If a percentage of fault, in the tort sense of the word, is assessed to the

employer as a nonparty in a lawsuit by the employee against a third party, and

that percentage of fault reduces the tort damages awarded to the plaintiff from

the third-party defendant, then the injured employee will not have been fully

compensated for his or her injury.5 This eliminates one of the rights granted to

       5
         Only if the employer is found by the trier of fact to bear no fault for the plaintiff-
employee’s damages, and yet the employer paid workers’ compensation benefits to the
employee, will the plaintiff remain whole once the damages awarded against the third party
defendant are reduced by the value of workers’ compensation benefits paid, pursuant to the
subrogation rule.

                                              6
the employer in exchange for the no-fault liability imposed against it under the

law. That is, as a result of applying OCGA § 51-12-33 (c) to the fault of an

employer, the employer’s right of subrogation will be moot.

      Applying subsection (c) to the fault of employers infringes upon another

benefit granted to employers in exchange for their no-fault liability under the

workers’ compensation law. Since workers’ compensation is the exclusive

remedy available against an employer for injuries covered under the law, one of

the trade-offs to the no-fault liability imposed by the law is the employer’s

exemption from the costs associated with defending tort litigation. Even though

OCGA § 51-12-33 does not diminish the employer’s immunity from tort

liability, it means the employer may very likely be required to bear the expense

and business disruption of responding, as a nonparty, to discovery in the

employee-plaintiff’s action against a third-party defendant seeking to apply the

apportionment rule to the fault of the employer. The defendant to that litigation

will want to maximize the fault assigned to the employer in order to diminish the

damages it must pay if found liable to the employee plaintiff, and the plaintiff

will want to minimize the fault assigned to the employer in order to maximize

recovery from the defendant. The dispute over the employer’s percentage of

                                        7
fault for the plaintiff’s injury may very well be protracted and expensive to the

employer, even though the employer “has no dog in the fight,” since it is clear

that a finding of fault against an employer does not create liability on the part

of the employer for damages. See OCGA § 51-12-33 (e). Predictably, the

parties will seek the production of business records and other documents from

the employer, may seek access to the workplace for observation and testing of

equipment, and may seek the discovery and trial testimony of managers and co-

employees, thus requiring the employer to incur substantial litigation costs and

economic down-time to respond. Predictably, the cost to an employer to

respond to discovery when its own fault is at issue will be greater, perhaps

substantially so, than the costs to respond if its fault were not at issue in the

lawsuit against the third party. This undercuts the employer’s bargained-for

exemption from incurring tort litigation costs.6

       6
         Regardless of the expense that may be incurred by a nonparty employer whose fault
becomes an issue at trial, that the nonparty employer has no interest in the outcome of
whether it is deemed to have some fault highlights another issue–the uncertainty of
determining the actual fault of a party without that party’s interested participation in the suit.
That is one of the reasons the Uniform Comparative Fault Act of 1977 provides for
apportionment of damages only to parties to the action and excludes nonparties from being
assigned a portion of responsibility for plaintiff’s injury. See Jonathan Cardi, Apportioning
Responsibility to Immune Nonparties: An Argument Based on Comparative Responsibility
and the Proposed Restatement (Third) of Torts, 82 IOWA L. REV. 1293, 1335 (1997) (citing
Uniform Comparative Fault Act §2 (a), 12 U.L.A. 46 (Supp. 1990) and former comment to

                                                8
      Preventing the injured employee from being fully compensated for his or

her injury obviously prejudices the employee. While it is part of the employee’s

trade-off, pursuant to the quid pro quo of the workers’ compensation scheme,

not to be able to recover tort damages from the employer, no support whatsoever

exists for the notion that the workers’ compensation law is meant to deprive an

employee of his or her ability to recover fully in tort from a third-party

tortfeasor whose fault is shown to be a proximate cause of a work-related injury.

But that is exactly the consequence of including an employer, exempt from tort

liability under the workers’ compensation law, as a nonparty, pursuant to OCGA

§ 51-12-33 (c), whose tort liability may be considered by a trier of fact to reduce

a damages award from a third-party defendant. See Carroll v. Whitney, 29

SW3d 14, 19 (Tenn. 2000) (discussing the “basic unfairness” that would result

if apportionment of the plaintiff’s employer’s fault were permitted to reduce the

damages due a plaintiff in a tort action against a third party where the employer

could then reduce the award further by exercising its right of subrogation under




section 2 (a), now found at Comment at “Parties”).

                                           9
the workers’ compensation law)7. Only in a case in which the value of the

workers’ compensation benefits paid to the employee meets or exceeds the

amount by which the third-party’s liability has been reduced will the plaintiff

be fully compensated for his or her injuries. This will be a rare case, as

illustrated by the many exemptions of the full measure of an employee’s loss

from workers’ compensation benefits.8




       7
          Responding to the majority opinion, I do not believe the Tennessee Supreme Court’s
discussion of the “basic unfairness” of permitting apportionment to reduce damages due a
plaintiff in an action against a third party, when the employer could then reduce the award
pursuant to subrogation permitted under workers’ compensation law, to be diminished by the
fact that Tennessee’s apportionment law was created by case law and not by statute.
       8
           An employer’s statutory liability to an injured employee under the workers’
compensation law does not correlate to the amount of damages the employer would owe the
employee if it were subject to common law tort liability, or to the employer’s percentage of
fault as applied to the employee’s damages if OCGA § 51-12-33 (c) is deemed to apply to
an employer. This is because workers’ compensation benefits are defined by statute and not
according to the employee’s actual damages that may, or may not, have been proximately
caused by the employer’s negligence, if any. Because the benefits are due regardless of fault,
they may exceed in some instances the amount the employer would owe if it were liable for
damages in tort. But in many instances, workers’ compensation benefits will not equal the
damages that would be owed if the employer were liable in tort. For example, as noted in
footnote 4 of this opinion, supra, typically, the employee may not recover benefits for pain
and suffering, whereas pain and suffering may be included in tort damages. Also, workers’
compensation benefits do not fully cover lost wages, whereas full compensation for lost
wages may be included in tort damages.

                                             10
      The workers’ compensation subrogation statute was originally enacted in

1992,9 well before the apportionment statute was rewritten in 200510 to provide

for the apportionment of fault to nonparties in an action for personal injury or

injury to property. All statutes are presumed to be enacted by the General

Assembly with full knowledge of the existing law and are

      to be construed in connection and in harmony with the existing law,
      and as part of a general and uniform system of jurisprudence, and
      its meaning and effect is to be determined in connection, not only
      with the common law and the constitution, but also with reference
      to other statutes and the decisions of the courts.

(Punctuation and citations omitted.) Retention Alternatives, Ltd. v. Hayward,

285 Ga. 437, 440 (678 SE2d 877) (2009). I conclude that the General Assembly

did not intend the apportionment statute to upset the carefully balanced interests

of the employer and employee set forth in Georgia’s workers’ compensation

law. Given the unique statutory rules applicable to workers’ compensation

benefits and obligations, and for the reasons set forth in this dissenting opinion,

I would hold that OCGA § 51-12-33 (c) does not permit a jury to assess a

percentage of fault to a nonparty employer of a plaintiff who, as here, sues a


      9
           Ga. L. 1992, p. 1942, § 2.
      10
           Ga. L. 2005, p.1, § 12/SB 3.

                                          11
third party for injuries sustained in a work-related incident because to do so

would interfere with the careful balance of interests set forth in the workers’

compensation law. I would reverse this Court’s holding in Zaldivar with respect

to its application to nonparties who are employers subject to the workers’

compensation laws for the plaintiff’s injury. I am authorized to state that Justice

Hunstein joins in this dissent.




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