The rights and the remedies granted to an employee by this chapter [i.e., the Act] shall exclude all other rights and remedies of such employee ... at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tort-feasor, other than an employee of the same employer....
Extending the immunity to the co-employee's makes sense insofar as the predictability of recovery and the exclusion of questions of negligence are concerned. After all, if an employer needs to worry about negligence of co-emloyees, the focus of investigation will be lost and the injured worker harmed by delays in receiving treatment. This statutory immunity applies as well even when the claim is not ever accepted as or ruled as compensable. Furthermore, this immunity applies when all parties agree that the injuries do not arise out of or occur in the course of the injured worker's employment. This situation occurs in the context of "no liability settlements."
First a word about settlements. Any settlement of a claim justiciable under the workers compensation act must be approved by the State Board. This requirement prevents employers from taking advantage of unwitting employees who might not be fully apprised of their rights in waiving a workers compensation claim. The State Board takes no position as to whether a claim should be settled and if so, for what amount. The form that the settlement can take depends on the posture of the claim at the time of resolution. Any claim in which income benefits are paid is an accepted compensable claim and must be resolved by a liability settlement which, when submitted, must be supported by medical evidence. In theory the State Board could refuse to approve settlement for insufficient consideration (i.e. not enough $$) but under current practice generally looks to whether the Employer is paying the PPD rating along with additional consideration for the waiver. Any claim in which nothing has been paid or in which only medical has been paid can be resolved on a no liability settlement. The Board's consideration of these settlements focuses on the questions of who will pay outstanding medical expense and whether the attorney fees are correctly limited to the statutory maximum of 25% of the gross recovery.
On September 10, 2012, in the case of Smith v. Ellis , the Georgia Supreme Court issued an interesting ruling dealing with a no liability settlement and its impact on a tort claim filed by the injured worker against a co-employee. The Court stated the issue as follows:
"The principal question in this appeal is whether an employee who files an injury claim against his employer under the Workers’ Compensation Act, OCGA §§ 34–9–1 to 34–9–421, and receives compensation in exchange for a “no liability” settlement with his employer that is approved by the State Board of Workers’ Compensation pursuant to OCGA § 34–9–15(b), may then turn around and sue the co-employee who caused the injury in a tort action."
The Georgia Court of Appeals previously answered that question (in its 2002 decision in the case of Ridley v. Monroe) by saying no, the co-employee could not be sued. In the Smith v. Ellis case, however, the Georgia Court of Appeals was evenly divided over the question of whether that rule should be changed, especially in the context of the injuries sustained by Mr. Smith. The Georgia Supreme Court declined to overrule the Ridley decision but decided that its provision of immunity did not apply to the injuries that Mr. Ellis had caused to Mr. Smith.
The adage that bad facts make bad law might be applicable to this situation (from Mr. Ellis' perspective) but the real answer is that there are some actions that are so patently stupid that it is difficult to apply a sensible standard to protect that conduct. Mr. Smith and Mr. Ellis were indeed co-employees. The record reflects the following:
Ellis called Smith to arrange a meeting so that he could borrow one of Smith’s tools for his personal use. Ellis also wanted to shoot some new guns he had purchased, including an AR–15 rifle, in an undeveloped field in the Westcott Place subdivision. At 10:30 the next morning, the two men met at a house that Smith was finishing in Westcott Place. Ellis made one phone call regarding a problem with the house and then followed Smith through a couple more houses for which Smith was responsible before they went to lunch around 11:00 a.m. Smith and Ellis returned to the subdivision at 1:00 p.m., where Smith continued to work. Ellis had no work to do and left that part of the property to avoid being seen by one of his supervisors, because he was not supposed to be at Westcott Place. At about 2:30 p.m., Smith met Ellis in the undeveloped field, which was a quarter of a mile away from the houses where Smith had been working. Ellis began firing his new rifle while Smith organized his work tools next to his truck. The rifle jammed three times. Ellis successfully cleared the first two rounds, but he accidentally shot Smith in the right thigh when he tried to clear the third round. The bullet went through Smith’s right leg and into his left leg, causing serious injury.
The fact pattern as set forth by the Court called into question, not the status but the activity in declining to apply the exclusive remedy to Mr. Ellis' actions. In short, the Court could not find any reasonable interpretation of the events that might bring Mr. Ellis within the course and scope of his employment. Smith had settled his WC claim with his employer on a no liability settlement and Ellis attempted to use that settlement under the worker's compensation act as absolution of his activities and his incompetency in handling a firearm. Ellis pointed to prior decisions involving negligence of co-employees for example in motor vehicle accidents in company owned parking lots in support of his position that negligent co-employees cannot be held liable for the injury which resulted. After all, Ellis contends, and Smith admits, that the shooting was accidental (even if collossally stupid). The Court viewed the question though as whether the Act protects an employee tort-feasor when the tort is committed outside the course of the tort-feasor’s employment.
The Court noted, "Indeed, the Act expressly excludes from coverage “injury caused by the willful act of a third person directed against an employee for reasons personal to such employee,” OCGA § 34–9–1(4)—including where the intentional tort-feasor is a fellow employee acting for personal reasons rather than in the course of his employment, see Kight v. Liberty Mut. Ins. Co., 141 Ga.App. 409, 410–11, 233 S.E.2d 453 (1977)"
In refusing to grant summary judgment to Ellis (in other words, the case can go to the jury for a decision), the Court noted:
Unlike Smith, who was injured while in the subdivision where he was assigned, had been doing his job, and was still engaged in organizing his work tools next to his truck, Ellis had come that day to a different subdivision in a different city to borrow a tool for personal use and to shoot his new guns. Ellis had worked little if at all that morning, and after lunch he did no work and actually hid his presence from a supervisor. Moreover, Ellis injured Smith during an activity their employer did not condone, much less direct
Bottom Line: You cannot protect from stupidity. As an employer, you can be more careful in hiring and you should be mindful of the activity of your employees. The Employer in this case might have been able to defend against the WC claim of Smith but would have to deal with the fact that Smith seemed to be doing what he was supposed to be doing where he was supposed to be doing it when he was shot by the activity of a co-employee who was decidedly not doing what he should.
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