Butler v. The Goodyear Tire & Rubber Company
Filing
191
ORDER denying 188 Motion to vacate. Within 14 days of the date this Order is served, Butler and the intervenors shall present a proposed schedule to the district judge. Signed by Magistrate Judge G. R. Smith on 2/29/16. (wwp)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
COREY M. BUTLER,
Plaintiff,
)
)
)
)
Case No. CV413-235
v.
THE GOODYEAR TIRE &
RUBBER COMPANY;
and GELCO CORPORATION,
d/b/a/ GE CAPITAL FLEET
SERVICES, INC.,
Defendants.
ORDER
Before the Court is plaintiff Corey M. Butler’s motion to vacate the
Court’s Order granting intervention. Doc. 188. After Butler was injured
in a one-vehicle accident, he sued Cooper Tire and Rubber Company, The
Goodyear Tire & Rubber Company and Gelco Corporation d/b/a GE Fleet
Services, Inc. Doc. 38. Announcing settlement, Butler, Goodyear and
Gelco moved to dismiss this case (Cooper had already been dismissed per
earlier settlement, doc. 124). Doc. 184.1 But they settled without the
1
That motion remains pending before the district judge.
consent of Butler’s employer, DS Services of America, Inc. (DS), or its
medical insurer, Safety National Casualty Corporation (SNCC). And
SNCC had provided Butler “with medical benefits and income benefits as
required under the Georgia Workers’ Compensation Act.” Doc. 185-1 at
1.
So, DS and SNCC moved to intervene -- on the very day the
settlement-dismissal motion was filed. Doc. 185. The Court granted
their motion. Doc. 186. Butler moves to vacate that Order. Doc. 188.
He argues that the Court failed to await his response under Local Rule
7.5 2 and that, on the merits, the intervenors failed to satisfy O.C.G.A. §
34-9-11.1(b). That statute, applied here through Fed. R. Civ. P. 24,
allows DS and SNCC to intervene to get reimbursed from settlement
cash only if Butler “has been fully and completely compensated.”
O.C.G.A. § 34-9-11.1(b). 3 Butler says he’s not been fully and completely
This is true, the Court erred in short-timing him, but the error is harmless within
the meaning of Fed. R. Civ. P. 61.
2
That statute allows DS and SNCC a recovery lien on the settlement, but it is
limited
3
to the recovery of the amount of disability benefits, death benefits, and medical
expenses paid under [the Act] and shall only be recoverable if the injured
employee has been fully and completely compensated , taking into consideration
both the benefits received under [the Act] and the amount of the recovery in
2
compensated.” Id. at 4-5. Hence, he contends, the intervenors cannot
satisfy Fed. R. Civ. P. 24(a)(2) (allows intervention as of right), or Rule
24(b) (permissive intervention). Doc. 188.
DS and SNCC concede their burden to show that Butler “has been
fully and completely compensated for all economic and non-economic
losses.” Doc. 190 at 3. But, they contend, that’s a separate inquiry and
they “are entitled to an evidentiary hearing or bench trial” for the Court
to determine that issue. Id. Hence, they insist that they are authorized
to intervene and litigate it. Id.
They are correct. As an encyclopedist explains:
The purposes of provisions giving employers a right of subrogation
against damages that the employee recovers from a third party
after the employer has at least partially paid its workers'
compensation liability 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, while assuring that the injured
employee first be made whole. West's Ga. Code Ann. § 34–9–11.1(b).
Walker v. Tensor Machinery Ltd ., 779 S.E.2d 651 (Ga. 2015).
12 GA . JUR . W ORKERS ' C OMPENSATION § 5:3 (March 2016). Thus:
The fact that an injured employee, who received workers'
compensation benefits, and the third-party tortfeasors responsible
for employee's injuries entered into lump sum settlement
the third-party claim, for all economic and noneconomic losses incurred as a
result of the injury.
O.C.G.A. § 34-9-11.1(b) (emphasis added).
3
agreement [does] not prevent the employer's workers'
compensation insurer from attempting to prove that the employee
was fully compensated for his injuries, as was necessary for the
insurer to enforce its subrogation lien, where the insurer
intervened in [the] employee's lawsuit against the tortfeasors in
order to protect its lien, but the employee and tortfeasors agreed to
the settlement without the insurer's input or consent.
Id. (footnote omitted); see also id. (“[A]n employer or insurer that has a
subrogation lien against a workers' compensation claimant's recovery
from a third party has an absolute right to intervene in both the trial and
settlement negotiations.”). 4 Nor can Butler’s counsel “paper-away” the
intervenors’ subrogation rights by winning defense consent to a “100%
4
This can get pretty tricky:
In deciding whether an employee has been fully and completely compensated,
the trial court should not “take into account the employee's
contributory/comparative negligence or assumption of the risk.” Homebuilders
Assoc. of Ga. v. Morris , 238 Ga.App. 194, 196, 518 S.E.2d 194 (1999).
Furthermore, because a subrogation lien is available only against recovery for
economic losses, a trial court cannot enforce the lien against the portion of the
employee's recovery that was meant to compensate him for his noneconomic
losses, i.e ., his pain and suffering. Hence, we have held that if the trial court is
unable to determine what portion of the employee's recovery against the third
party was meant to compensate him for his economic losses versus his
noneconomic losses, the court cannot enforce the lien.
Best Buy Co., Inc. v. McKinney , 334 Ga. App. 42, 45 (2015) (quotes and cites omitted);
see also id. at 45 (employer failed to show that former employee was fully and
completely compensated by workers' compensation benefits and settlement with
third-party alleged tortfeasors, and thus employer was not entitled to recover on its
claim for subrogated lien for workers' compensation benefits; employer's expert failed
to interview former employee and gather other factual information that was essential
to an accurate determination of his economic losses, and was unable to differentiate
between economic and noneconomic damages awarded as part of the settlement).
4
pain and suffering settlement,” or some other subrogation-neutralizing
characterization.
See Best Buy , 334 Ga. App. at 45-48 (analyzing
employer’s subrogation evidence, not just the settlement agreement’s
terms); see also id. (but “if the trial court is unable to determine what
portion of the employee's recovery against the third party was meant to
compensate him for his economic losses versus his noneconomic losses,
the court cannot enforce the lien.”).
Accordingly, plaintiff Corey M. Butler’s motion to vacate is
DENIED . Doc. 188. Within 14 days of the date this Order is served,
Butler and the intervenors shall present a proposed schedule to the
district judge (the dismissal motion, doc. 184, is still before him) 5 for
resolution of the subrogation claim, which is a mixed question of fact and
law. 12 GA . JUR . WORKERS ' C OMPENSATION § 5:8 (March 2016) (citing
Anthem Cas. Ins. Co. v. Murray , 246 Ga. App. 778, 781 n. 10 (2000)).
Note, in that regard, that:
[b]ecause subrogation for workers' compensation benefits was
unknown at common law, neither party has a right to a jury
determination of whether or not the subrogation lien attaches or
whether full and complete compensation for the claimant was
Presumably the district judge will partially grant the dismissal motion and drop
the settling tortfeasors from this case. Nothing is stopping them from presenting a
proposed order to that end.
5
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obtained. However, either by the agreement of the parties or by
waiver in failing to timely object, the trial court in a claimant's tort
suit can submit the issue of full and complete compensation to [a]
jury to render an advisory finding of fact on a subrogation claim by
an employer or workers' compensation insurer. Nevertheless, the
legal duty to make the determination that the claimant has been
made whole still remains with the trial court, even if it uses a jury
to advise it in reaching such determination.
Id. (footnote omitted) (citing Canal Ins. Co. v. Liberty Mitt. Ins. Co ., 256
Ga. App. 866, 870 (2002)). 6
SO ORDERED, this 29th day of February, 2016.
UNITED STATES MAGISTRATE ILJDGE
SOUTI-IERI'T DISTRICT OF GEORGIA
Because of the settlements, and for docket-clearing purposes only, the Clerk is
DIRECTED to terminate as moot all of the pre-settlement motions in this case.
Docs. 127, 130, 131, 132, 133, 135, 136, 137, 139 & 174.
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