FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 16, 2001

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 01-11439

________________________

D. C. No. 96-00413-CV-WBH-1

GEORGIA ELECTRIC MEMBERSHIP 

CORPORATION,

Plaintiff-Appellant,

TIM FRANKS,

LILLIAN FRANKS,

Plaintiffs, 

versus

HI-RANGER, INC., SIMON TELELECT,

BAKER EQUIPMENT COMPANY,

SIMON ACCESS-NORTH AMERICA,

 

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(November 16, 2001)

Before BLACK, HILL and STAPLETON*, Circuit Judges.

_______________

*Honorable Walter K. Stapleton, U.S. Circuit Judge for the Third Circuit, sitting by designation.

PER CURIAM:
1 At the time of the accident, Franks was employed by Cobb Electric Membership

Corporation (Cobb). Cobb was an affiliate of Georgia Electric Membership Corporation

(GEMC). 

2 O.C.G.A. Section 34-9-11.1 states in pertinent part:

(a) When the injury or death for which compensation is payable under this chapter

is caused under the circumstances creating a legal liability against some person

other than the employer, the injured employee or those to whom such employee’s

right of action survives at law may pursue the remedy by proper action in a court 

 . . . against such other persons.

(b) In the event an employee has a right of action against such other person as

contemplated in subsection (a) of this Code section and the employer’s liability

under this chapter has been fully or partially paid, then the employer . . . shall

have a subrogation lien, not to exceed the actual amount of compensation paid

pursuant to this chapter, against such recovery. The employer . . . may intervene

in any action to protect and enforce such lien. However, the employer’s . . .

recovery . . . shall only be recoverable if the injured employee has been fully and

completely compensated.

(c) Such action against such other person by the employee must be instituted in all

cases withing the applicable statute of limitations. If such action is not brought

by the employee within one year after the date of injury, then the employer or

such employer’s insurer may but is not required to assert the employee’s cause of

action in tort, either in its own name or in the name of the employee.

3 The complaint originally named multiple other defendants that for various reasons not

pertinent here, have been dismissed. 

4 In their prayers for relief in the complaint, (1) GEMC sought the amount of workers’

compensation benefits paid to Franks; (2) Mr. Franks sought damages in the amount of

2

Tim Franks was injured on the job in 1994 while operating a truck mounted

boom mechanism.1

 Georgia Electric Membership Corporation (GEMC) paid

workers’ compensation benefits to Franks for his disabling injuries.

In 1996 Franks and his wife Lillian and GEMC filed this action under

O.C.G.A. Section 34-9-11.12

 against Terex Telelect, Inc. (Terex)3 alleging that a

defective boom mechanism proximately caused Franks’ injuries.4

 Three years later
$500,000, not covered by workers’ compensation; and (3) Mrs. Franks sought damages in the

amount of $100,000 for loss of consortium.

5 Paragraphs five and six of the settlement agreement and release both contain the

sentence: “This provision does not apply to pending claims by Georgia Electric Membership

Corporation.”

6 The notice of dismissal with prejudice contains the sentence: “This does not dismiss

claims filed by Georgia Electric Membership Corporation.”

3

the Franks executed a settlement agreement and release with Terex for a total of

$80,0005

 and filed a notice of dismissal with prejudice.6 

Thereafter, the district court granted Terex’s motion for summary judgment

finding that under Georgia law the settlement agreement reached by the Franks

with Terex extinguished GEMC’s claim. On appeal, GEMC argues that this is an

issue of first impression as no Georgia Supreme Court cases specifically address

this issue. We agree.

As we conclude that this case involves an unanswered question of Georgia

law with no controlling precedent, we certify the following question to the Georgia

Supreme Court for instructions:

UNDER GEORGIA WORKERS’ COMPENSATION LAW, WHERE

COMPENSATION HAS BEEN PAID BY EMPLOYER/INSURER

TO AN INJURED EMPLOYEE/CLAIMANT AND, AFTER ONE

YEAR, THE EMPLOYER/INSURER AND THE

EMPLOYEE/CLAIMANT BRING AN ACTION AS COPLAINTIFFS AGAINST THE ALLEGED TORTFEASOR, IN

WHICH THE EMPLOYEE/CLAIMANT SEEKS RECOVERY FOR

DAMAGES OTHER THAN THOSE COVERED BY WORKERS’

COMPENSATION AND THE EMPLOYER/INSURER SEEKS

RECOVERY FOR BENEFITS PAID BY IT TO THE

EMPLOYEE/CLAIMANT, DOES A SETTLEMENT AGREEMENT
4

EXECUTED BETWEEN THE EMPLOYEE/CLAIMANT AND

THE ALLEGED TORTFEASOR, AS EVIDENCED BY A

RELEASE OF THE EMPLOYEE/CLAIMANT’S CLAIMS, BUT

SPECIFICALLY RECITED TO BE NOT A RELEASE OF THE

EMPLOYER/INSURER’S “PENDING CLAIMS,” EXTINGUISH

THE CLAIMS OF THE EMPLOYER/INSURER?

In certifying this question, we do not intend the particular phrasing of it to

limit the court in its consideration of the problem posed by the case. In order to

assist the court’s consideration of this case, the entire record, along with the briefs

of the parties, shall be transmitted to the court.

QUESTION CERTIFIED.