David Keith Pogue; Denise Pogue, Plaintiffs-appellants, v. Oglethorpe Power Corp.; Rome Employment Services, Inc.,defendants-appellees, 102 F.3d 1208 (11th Cir. 1997)

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U.S. Court of Appeals for the Eleventh Circuit - 102 F.3d 1208 (11th Cir. 1997) Jan. 8, 1997

John S. Husser, Mundy & Gammage, P.C., Cedartown, GA, Hardy Gregory, Jr., Davis, Gregory, Christy & Forehand, Cordele, GA, for plaintiffs-appellants.

S. Lester Tate, III, Cartersville, GA, for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia (No. 4:93-00258-CV-HLM); Harold L. Murphy, Judge.

Before CARNES, Circuit Judge, HILL and KRAVITCH, Senior Circuit Judges.


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. After the district court granted summary judgment in favor of the defendants, the Pogues appealed that decision with respect to Oglethorpe, but abandoned their claim against RES. Having substantial doubt about the proper resolution of the state law issue presented by the case, we certified the following question to the Georgia Supreme Court:

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?

Pogue v. Oglethorpe Power Corp., 82 F.3d 1012, 1017 (11th Cir. 1996).

In a thorough opinion, the Georgia Supreme Court has answered the certified question in the negative. Pogue v. Oglethorpe Power Corp., 477 S.E.2d 107 (Ga.1996). In light of that opinion, we REVERSE the grant of summary judgment in favor of Oglethorpe, and we reiterate our prior decision affirming the grant of summary judgment in favor of RES. We REMAND the case for further proceedings consistent with Georgia law as illuminated by the Georgia Supreme Court's answer to our certified question.