717 F.

2d 530

Jackson M. TROXLER, Plaintiff-Appellee,

v.
OWENS-ILLINOIS, INC., Defendant/Third-Party PlaintiffAppellant,
v.
NATIONAL SERVICE INDUSTRIES, INC., d/b/a North Bros.
Co.,
Third-Party Defendant-Appellee.
No. 82-8157.

United States Court of Appeals,

Eleventh Circuit.
Oct. 17, 1983.

Warner R. Wilson, Jr., Atlanta, Ga., N. Sandy Epstein, Atlanta, Ga., for
defendant/third-party plaintiff-appellant.
Alvin Leaphart, Robert Smith, Jesup, Ga., Phillip Taylor, Brunswick, Ga.,
for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of
Georgia.
Before GODBOLD, Chief Judge, and RONEY, Circuit Judge, and
PITTMAN* , District Judge.
GODBOLD, Chief Judge:

The plaintiff in this diversity action, Jackson M. Troxler, was injured when he
fell from a manlift while installing insulation on the premises of the defendant,
Owens-Illinois, Inc. Troxler was directly employed by National Service
Industries, Inc., d/b/a North Brothers Co., which was insulating equipment at
the Owens plant in Valdosta, Georgia, pursuant to a contract between North
Brothers and Owens.

Troxler filed suit against Owens alleging negligence in maintaining and

operating the manlift. Owens filed a third-party complaint against North
Brothers alleging that if Owens was liable to Troxler then North Brothers
would be required to indemnify Owens for any losses pursuant to a contract of
indemnification between Owens and North Brothers. The jury returned a verdict
for Troxler for $300,000, specifically finding Troxler 20% comparatively
negligent, Owens 80% comparatively negligent, and North Brothers free from
negligence. The court entered judgment for Troxler and against Owens for
$240,000. The district court denied Owens's motions for new trial and for
judgment n.o.v. Owens appeals and we affirm.

Owens asserts that (1) the statutory immunity provisions 1 of the Georgia
Workers' Compensation Act bar Troxler's action; (2) the evidence does not
support the verdict in favor of Troxler; and (3) if Owens is liable to Troxler,
then North Brothers must indemnify Owens.

I. Statutory Immunity
4

Owens raises for the first time on appeal an issue of statutory immunity. Before
we can consider this contention on the merits, Owens must overcome two
formidable barriers. First, Fed.R.Civ.P. 8(c) provides that "[i]n pleading to a
preceding pleading, a party shall set forth affirmatively ... any other matter
constituting an avoidance or affirmative defense." An affirmative defense not
pleaded in the defendant's answer is waived. See Freeman v. Chevron Oil Co.,
517 F.2d 201, 204 (5th Cir.1975). Second, generally a court will not consider
an issue for the first time on appeal. See Excavators & Erectors, Inc. v. Bullard
Engineers, Inc., 489 F.2d 318, 320 (5th Cir.1973).

Determining whether a contention is an affirmative defense for rule 8(c)

purposes is a matter of state law. See Freeman, 517 F.2d at 204. An even more
precise statement of the law appears in Morgan Guaranty Trust Co. v. Blum,
649 F.2d 342, 344 (5th Cir.1981) (Unit B): "In diversity of citizenship actions
state law defines the nature of defenses, but the Federal Rules of Civil
Procedure provide the manner and time in which defenses are raised and when
waiver occurs."

In Seal v. Industrial Electric, Inc., 362 F.2d 788, 789 (5th Cir.1966), the court
looked to Mississippi law and determined that a claim of statutory immunity
under Mississippi's workers' compensation scheme was an affirmative defense
under rule 8(c). In Freeman, 517 F.2d at 204, the court reached the same
conclusion regarding a statutory immunity claim under Louisiana's workers'

compensation law. Thus we look to Georgia law to determine whether a claim

of statutory immunity under Georgia's scheme is an affirmative defense and
subject to waiver under rule 8(c).
7

Owens contends that the Supreme Court of Georgia's decision in Wright

Associates v. Rieder, 247 Ga. 496, 277 S.E.2d 41 (1981), indicates that a claim
of statutory immunity is not an affirmative defense under Georgia law for
purposes of federal rule 8(c). In Rieder the defendant first raised the issue of
statutory immunity by motion for summary judgment almost two years after the
answer, and the trial court rejected this motion. The court held that rule 8(c) of
Georgia's Civil Practice Act, Ga.Code Ann. Sec. 9-11-8(c) (1982), did not
require the defendant affirmatively to plead the defense of statutory immunity
in its answer. 247 Ga. at 500, 277 S.E.2d at 44. The court distinguished
Freeman, on which the plaintiffs both in Rieder and the present action rely, as
dealing with a defense under Fed.R.Civ.P. 8. The court contrasted the language
of the federal rule2 and Georgia's rule 3 concerning affirmative pleading of
certain matters. Id. The court noted that the federal rule, after listing certain
matters, requires pleading "any other matter constituting an avoidance or
affirmative defense." Id. Georgia's rule, on the other hand, specifically lists
matters that must be pleaded affirmatively but has no similar language requiring
pleading any other matters constituting affirmative defenses. In fact, such allencompassing language appeared in the first version of Georgia's Civil Practice
Act but was removed by a 1967 amendment. Id. Through this discussion the
Georgia court implicitly recognized that, although a claim of statutory
immunity would be an affirmative defense requiring pleading under federal rule
8(c), such a claim was not required to be affirmatively pleaded under Georgia's
rule because statutory immunity was not specifically listed in Georgia rule 8(c)
among those matters requiring affirmative pleading.

The court in Rieder, therefore, did not hold that a claim of statutory immunity
was not an affirmative defense. On the contrary, the court held merely that such
a claim did not require affirmative pleading under Georgia's peculiar rules but,
in so holding, also recognized that such a claim would be "any other matter
constituting an avoidance or affirmative defense" under the language of the
federal rule.

Because Owens failed to raise the claim of statutory immunity in its defensive
pleadings, this defense was waived. See Shook & Fletcher Insulation Co. v.
Central Rigging & Contracting Corp., 684 F.2d 1383, 1386 (11th Cir.1982);
Freeman, 517 F.2d at 204; see also 5 C. Wright & A. Miller, Federal Practice
and Procedure Sec. 1278, at 339 (1969) (failure to plead affirmative defense
results in waiver and exclusion of defense from case).

10

Even if Owens were to overcome the bar of rule 8(c) waiver, it would still face
the barrier imposed by the general rule that a court will not consider issues
raised for the first time on appeal. This circuit and the former Fifth Circuit have
consistently held that a court will not consider on appeal for the first time a
question that requires development of factual issues. See Hall v. Board of
School Commissioners, 681 F.2d 965, 969-70 (5th Cir.1982) (Unit B);
Martinez v. Mathews, 544 F.2d 1233, 1237 (5th Cir.1976); Pierre v. U.S., 525
F.2d 933, 936 (5th Cir.1976); Guerra v. Manchester Terminal Corp., 498 F.2d
641, 658 n. 47 (5th Cir.1974).

11

Owens argues, however, that its claim of statutory immunity on appeal falls
within an exception to the above rule. Specifically, Owens contends that the
court can consider for the first time on appeal an issue involving a pure
question of law. See Martinez v. Mathews, 544 F.2d 1233, 1237 (5th Cir.1976).
This argument does not acknowledge that determining whether one is a
statutory employer is essentially a factual inquiry.

12

The Court of Appeals of Georgia in Western Electric Co. v. Capes, 164

Ga.App. 353, 296 S.E.2d 381 (1982), discussed factual situations necessary to
label an entity as a statutory employer under the workers' compensation
scheme. That an individual works on the premises of an owner directly for a
third party pursuant to a contract between the owner and the third party, as
Owens attempts to argue in this case, does not render the owner of the premises
a statutory employer of that employee. Rather, as the court stated in Capes, one
must look to the "nature of the relationships" in the particular case. Id. at 355,
296 S.E.2d at 383. In both Capes and Godbee v. Western Electric Co., 161
Ga.App. 731, 288 S.E.2d 881 (1982), the same company, Western Electric, was
the owner of business premises on which it was engaged in manufacturing. The
plaintiff in each case was an employee of a corporation with which the owner
had a contract. In Godbee the owner of the premises manufactured electric
cables, and a necessary part of that business was the maintenance of the part of
the plant where the cables were produced. By contract this ongoing
maintenance was performed by the company whose employee was injured.
Thus the maintenance work in Godbee constituted a part of the overall
manufacturing process that the owner by contract had turned over to the
employee's immediate employer to perform for the owner on the premises.
Capes, 164 Ga.App. at 355-56, 296 S.E.2d at 384. The owner in Godbee, based
on these facts, received the immunity granted a statutory employer under the
act. See id.

13

In Capes, on the other hand, the contract with the injured employee's direct
employer involved placing and servicing vending machines on the premises of

the owner. Id. The court in Capes concluded that this contract was not a part of
the business of the owner. Id. The immediate employer was not a
"subcontractor" of any essential part of the enterprise. Id.
14 owner's] obligation to stockowners and customers was to manufacture cable.
[The
Whether or not it agreed to allow entry into its plant for the purpose of the
installation and maintenance of vending machines was no part of the manufacturing
process. [The owner] is accordingly not a statutory employer of Capes in its business
activity.
15

Id.

16

Godbee and Capes remove all doubt, therefore, that determining whether an
entity is a statutory employer requires a thorough factual inquiry into the
particular type of business of the owner, the type and quality of the work done
by the injured employee, and the relation of that work to the overall
manufacturing process of the owner. This issue is not a purely legal one within
the meaning of Martinez; it involves the sort of factual inquiry that courts will
not consider for the first time on appeal. See Hall v. Board of Commissioners,
681 F.2d at 969-70. Accordingly, we may not consider the issue of statutory
immunity raised by Owens for the first time on appeal.

17

Owens contends, nevertheless, that it should be excused from failing to plead

statutory immunity in its answer or raise this issue prior to appeal because only
after the trial and denial of the post-trial motions did Georgia law change to
allow the assertion of this defense by one in Owens's position. Owens has cited
no case on this ground that excuses failure to plead or raise an issue before
appeal, but we assume, for purposes of discussion, that Owens asserts a futility
argument. That is, it should be excused from failing to raise this issue because
the law as it existed at the time of the answer and thereafter through the denial
of the motions for new trial and judgment n.o.v. rendered futile the assertion of
this defense at any earlier point in the process. Cf. Brotherhood of Railroad
Trainmen v. Central of Georgia Railway, 415 F.2d 403, 417-18 (5th Cir.1969)
(discussion of requirements for assertion of ground of futility to excuse failure
to raise point before appeal), cert. denied, 396 U.S. 1008, 90 S.Ct. 564, 24
L.Ed.2d 500 (1970).

18

Owens contends that with the Georgia Court of Appeals decision in Godbee v.
Western Electric Co., 161 Ga.App. 731, 288 S.E.2d 881 (1982), the law
changed to allow an owner in Owens's position to claim statutory immunity
under Georgia's workers' compensation scheme. The Georgia court released
this opinion almost one month after the district judge denied Owens's motions

for new trial and judgment n.o.v.

19

It is unnecessary, however, to resolve Owens's [presumed] futility argument,

for even if we excused its failure to raise its defense before now, we would
need to find that under Georgia law the change enunciated by Godbee was
meant to apply retroactively. But the Georgia courts have specifically held that
a change in the law of statutory immunity similar to the one enunciated by
Godbee does not apply retroactively.

20

In Johnson v. Hensel Phelps Construction Co., 250 Ga. 83, 295 S.E.2d 841
(1982), the Georgia Supreme Court confronted a situation resembling closely
the one at bar. In that case the defendant raised for the first time on appeal the
defense of statutory immunity under Georgia's workers' compensation scheme.
After the trial ended and the motion for directed verdict had been made, the
Supreme Court of Georgia issued its decision in Wright Associates v. Rieder,
247 Ga. 496, 277 S.E.2d 41 (1981). In Rieder the court overruled a long line of
precedent and held that an employee of a subcontractor engaged upon the
subject matter of the contract who is injured on, in, or about the premises on
which the principal contractor has undertaken to execute the work cannot
maintain an action in tort against the principal contractor. Id. at 499, 277 S.E.2d
at 43. Prior to Rieder unless the immediate employer of the injured employee
occupied a master-servant relationship with the original contractor, it was
believed that no statutory immunity existed. See Capes, 164 Ga.App. at 355,
296 S.E.2d at 383. In Johnson the lower court applied the decision in Rieder
retroactively and allowed the defense of statutory immunity to succeed. 250
Ga. at 83, 295 S.E.2d at 842. On appeal the Supreme Court of Georgia refused
to apply Rieder retroactively when the issue of statutory immunity had not been
urged until appeal, even though the change in the law did not occur until after
the motion for directed verdict had been made. Id. at 83-84, 295 S.E.2d at 843.
Since the retroactive application of a change in state law is a question of state
law and since the Georgia court has shown its unwillingness retroactively to
apply that change to one in Owens's position, we must follow that
determination.

21

Accordingly, we hold that Owens's claim of statutory immunity does not bar
Troxler's action.

II. Sufficiency of the Evidence

22

Owens contends that the evidence adduced at trial does not support the jury
verdict in favor of Troxler and that the district court erred in failing to grant
Owens's motions for directed verdict and for judgment n.o.v. Owens concedes

that this action rests upon Owens's broad duty to maintain the manlift in a
manner rendering it safe for invitees, see Batson-Cook Co. v. Shipley, 134
Ga.App. 210, 212, 214 S.E.2d 176 (1975) (owner of property has duty to
exercise ordinary care in keeping premises and approaches safe for invitees),
but contends that the jury rendered its verdict under a stricter standard, holding
Owens liable as an insurer of Troxler's safety. The evidence conclusively
shows, Owens maintains, that it exercised ordinary care to maintain and operate
the lift. By maintaining that it was held liable as an insurer, Owens thus
challenges the sufficiency of the evidence to support the jury's verdict and
finding of negligence.
23

We evaluate the sufficiency of the evidence to support denial of the motion for
directed verdict and for judgment n.o.v. under Boeing Co. v. Shipman, 411 F.2d
365, 374 (5th Cir.1969) (en banc). See also Smith v. Tennessee Valley
Authority, 699 F.2d 1043, 1045 (11th Cir.1983).

24

Under Georgia law an owner, absent negligence, is not an insurer of his

premises, see Feldman v. Whipkey's Drug Shop, 121 Ga.App. 580, 581, 174
S.E.2d 474, 476, cert. denied, 400 U.S. 946, 91 S.Ct. 251, 27 L.Ed.2d 251
(1970), and the law requires an owner to have superior knowledge of a danger
on the premises before liability can be imposed, see McIntyre v. Corporate
Property Investors, 160 Ga.App. 868, 869, 288 S.E.2d 584, 585 (1982). These
cases, however, do not dictate a reversal of the district court's denial of the
post-trial motions in this case. The plaintiff presented the jury with ample
evidence of the defendant's negligence and superior knowledge of the hazard.

25

Troxler contends that he fell from the lift and was injured when he was forced
into an object at the top of the building where the lift comes to an end. Troxler
maintains that he did not recognize that he was approaching the top floor and
the end of the lift because the warnings and safety devices were inadequate or
malfunctioning. Troxler presented the following evidence to the jury: (1) the
signs warning that one was approaching the top floor were so positioned that
one properly riding the manlift could not see them; (2) the warning light
indicating the top floor was not visible to one properly riding the manlift; (3)
signs placed on other floors warning of arrival on the top floor would have
more effectively alerted those on the lift; (4) no one ever instructed Troxler on
the use of the manlift or its safety features; (5) the automatic cut-off
mechanisms did not operate properly on the day of the incident; (6) the warning
light did not operate at the time of the incident; (7) the manlift presented a
serious danger to passengers carried to the top floor (the potential of being
crushed between the manlift and a steel grating); (8) Owens had superior
knowledge of the manlift owing to its installation and, on the day before the

incident, the alleged maintenance, inspection, and repair of the lift.

26

Based on this evidence, under the Boeing standard, reasonable and fair-minded
jurors could have concluded that failure to provide additional warning and
safety devices or to instruct Troxler on the use and safety mechanisms of the
manlift created a hazard that Owens should have noticed and corrected as an
exercise of reasonable care. The district court properly denied Owens's posttrial motions.

III. The Owens-North Brothers Indemnification Agreement

27
28

Owens next contends that, even if it is liable to Troxler, North Brothers must
indemnify Owens pursuant to the indemnification agreement between the
parties. Owens predicates this duty on the jury finding that Troxler, North
Brothers's employee, was 20% comparatively negligent, which Owens imputes
to North Brothers. The indemnification agreement provided that North Brothers
agreed to indemnify Owens "from any liability or expense on account of ...
personal injury ... arising out of or in any way connected with or attributable to
the performance or nonperformance of work hereunder by Contractor, its
subcontractor(s) and their respective employees ... while on [Owens's]
premises."

29

While this language appears at first glance to require indemnification of Owens

by North Brothers, the Georgia courts' strict construction of indemnification
agreements precludes such an obligation. In Binswanger Glass Co. v. Beers
Construction Co., 141 Ga.App. 715, 234 S.E.2d 363 (1977), the Georgia Court
of Appeals considered an indemnification agreement with language similar to
that in the present action.4 The court held that where the only negligence shown
on the part of the contractor was the contributory negligence of the contractor's
injured employee, strict construction precluded construing the contract to
require the contractor to indemnify the owner for the owner's acts of
negligence. Id. at 719, 234 S.E.2d at 366. In this action, as in Binswanger, the
only negligence of North Brothers is the 20% comparative negligence imputed
to it through its injured employee, Troxler. The jury specifically found that
North Brothers was 0% negligent. Thus under Binswanger Owens is not
entitled to indemnification from North Brothers.

30

Owens contends, however, that a contrary result is dictated by Stafford

Enterprises v. American Cyanamid Co., 164 Ga.App. 646, 297 S.E.2d 307
(1982). In Stafford Enterprises the court required indemnification where the
only negligence of the contractor was the comparative negligence of its
employee. But the agreement in Stafford, unlike that in the present action,

specifically mentioned the comparative negligence situation and relieved the

contractor from the obligation to indemnify only if the injury was owing to the
sole negligence of the owner.5 Id. at 648-49, 297 S.E.2d at 310. The broad
language of the agreement in the present action resembles more closely that in
Binswanger than that in Stafford. Following the Georgia court in Binswanger,
we do not construe the agreement at hand to require indemnification by North
Brothers when the only negligence of North Brothers was the contributory
negligence of Troxler.
31

The judgment of the district court is AFFIRMED.

Honorable Virgil Pittman, U.S. District Judge for the Southern District of
Alabama, sitting by designation

Ga.Code Ann. Sec. 34-9-11 (1982) provides an exclusive remedy under the
Georgia workers' compensation scheme, Ga.Code Ann. Sec. 34-9 (1982), to
employees under the act and thereby protects employers under the act from
suits at common law. Ga.Code Ann. Sec. 34-9-8 (1982) also extends this
protection beyond the immediate employer in certain situations. That section
provides that "[a] principal, intermediate, or subcontractor shall be liable for
compensation to any employee injured while in the employ of any of his
subcontractors engaged upon the subject matter of the contract to the same
extent as the immediate employer." Id. Owens thus contends that it is a
"principal" within this section and entitled to protection as a statutory employer

Fed.R.Civ.P. 8(c) provides:

(c) Affirmative Defenses. In pleading to a preceding pleading, a party shall set
forth affirmatively accord and satisfaction, arbitration and award, assumption of
risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure
of consideration, fraud, illegality, injury by fellow servant, laches, license,
payment, release, res judicata, statute of frauds, statute of limitations, waiver,
and any other matter constituting an avoidance or affirmative defense.
(emphasis added).

Ga.Code Ann. Sec. 9-11-8(c) provides:

(c) Affirmative defenses. In pleading to a preceding pleading, a party shall set
forth affirmatively accord and satisfaction, arbitration and award, discharge in
bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by
fellow servant, laches, license, payment, release, res judicata, statute of frauds,

statute of limitations, and waiver.

4

The agreement in Binswanger provided:

The Contractor shall indemnify and hold harmless the Owner and the Architect
and their agents and employees from and against all claims, damages, losses
and expenses including attorneys' fees arising out of or resulting from the
performance of the Work, provided that any such claim, damage, loss or
expense (1) is attributable to bodily injury, sickness, disease or death, or to
injury to or destruction of tangible property (other than the Work itself)
including the loss of use resulting therefrom, and (2) is caused in whole or in
part by any negligent act or omission of the Contractor, any Subcontractor,
anyone directly or indirectly employed by any of them or anyone for whose acts
any of them may be liable, regardless of whether or not it is caused in part by a
party indemnified hereunder.

141 Ga.App. at 716 n. 1, 234 S.E.2d at 364 n. 1

5

The agreement in Stafford Enterprises provided:

Subject to the terms and conditions of this contract, CONTRACTOR [Stafford]
shall be liable for and protect, defend, indemnify and save CYANAMID, its
officers, directors, and employees harmless against any and all claims, losses,
demands, causes of action and any and all related costs and expenses, of every
kind and character suffered by the parties hereto and/or their employees and to
the person or property of any other person or corporation, on account of
personal injuries or death, or damages to property occurring, growing out of,
incident to, or resulting directly or indirectly from the performance by
CONTRACTOR [Stafford] hereunder, whether such loss, damage, injury or
liability is contributed to by the negligence of CYANAMID or its employees
and whether due to imperfections of any material furnished by CYANAMID, or
by premises themselves or any equipment thereon, whether latent or patent, or
from other causes whatsoever; except that CONTRACTOR [Stafford] shall
have no liability for damages or the costs incident thereto caused by the sole
negligence of CYANAMID.

164 Ga.App. at 648-49, 297 S.E.2d at 310 (emphasis added)