Workers' compensation subrogation after a Georgia truck crash

Employee's action against a person other than the employer

Section 34-9-11.1(a) gives the right to sue to the injured employee or "those to whom such employee's right of action survives at law". The suit proceeds by proper action in a court of competent jurisdiction, subject to the express qualifier "except as precluded by Code Section 34-9-11 or otherwise". The triggering facts are an injury or death compensable under the chapter and circumstances that create legal liability for a person other than the employer. When a truck driver's work injury is compensable under the chapter and the circumstances create legal liability against a person other than the employer, the driver may pursue that person, unless the action is precluded by Code Section 34-9-11 or otherwise. In a truck crash, the person sued is someone other than the employer against whom the circumstances create legal liability.^[1][2]

Section 34-9-11(a) provides that "No employee shall be deprived of any right to bring an action against any third-party tort-feasor", and it then sets out persons outside that right. One is an employee of the same employer, such as another truck driver employed by that same employer. Another is any person who, pursuant to a contract or agreement with an employer, provides workers' compensation benefits to an injured employee, even where no common-law master-servant relationship or contract of employment exists between the injured employee and the person providing the benefits. The list also reaches a construction design professional retained to perform professional services on or in conjunction with a construction project on which the employee was working when injured. It reaches any employee of that professional who is assisting in the performance of professional services on the construction site where the employee was working when injured. Both design professional exclusions apply "unless the construction design professional specifically assumes by written contract the safety practices for the project". In a truck crash case brought under Section 34-9-11.1(a), these exclusions in Section 34-9-11(a) limit who may be named as the other person.^[2][1]

Employer and insurer subrogation lien under O.C.G.A. 34-9-11.1(b)

Section 34-9-11.1(b) creates the lien when an employee has a right of action against a person other than the employer "as contemplated in subsection (a) of this Code section" and the employer's liability under the chapter has been fully or partially paid. In that case the employer or the employer's insurer holds a subrogation lien against the recovery, not to exceed the actual amount of compensation paid under the chapter. The employer or insurer "may intervene in any action to protect and enforce such lien". In a truck accident suit that produces a recovery subject to the lien, the employer or insurer may intervene for that purpose. Recovery on the lien depends on the full-compensation condition, under which the employee has been fully and completely compensated. For a truck driver, the subsection (a) action that produces the recovery remains subject to Code Section 34-9-11.^[1][2]

Subsection (b) limits the employer's or insurer's recovery to "the amount of disability benefits, death benefits, and medical expenses paid under this chapter". That amount is recoverable only if the injured employee has been fully and completely compensated for all economic and noneconomic losses incurred as a result of the injury. The measure takes into consideration both the benefits received under the chapter and the amount of the recovery in the third-party claim. For injured truck drivers, the comparison counts the chapter benefits together with the third-party recovery.^[1]

When a truck driver's work injury is compensable under the chapter, the employer's liability has been fully or partially paid, and the driver recovers from a person other than the employer under Section 34-9-11.1(a), the employer's or insurer's recovery from that sum is limited to "the amount of disability benefits, death benefits, and medical expenses paid under this chapter". The subrogation lien in that truck crash case is not to exceed the actual amount of compensation paid under the chapter. That recovery depends on the condition that the driver has been fully and completely compensated for all economic and noneconomic losses incurred as a result of the injury. The truck crash recovery itself comes from an action that remains subject to the preclusions in Code Section 34-9-11.^[1][2]

Filing deadline and assertion of the claim by the employer or insurer

Section 34-9-11.1(c) provides that the employee's action against the other person "must be instituted in all cases within the applicable statute of limitations". If the action is not brought by the employee within one year after the date of injury, the employer or its 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. The employer or its insurer is then required to notify the employee immediately of that assertion, and the employee has a right to intervene. If the employee asserts his or her cause of action in tort after one year from the date of injury, the employee is required to notify the employer or its insurer immediately, and the employer or its insurer has a right to intervene. In a truck accident case, the employer's or insurer's duty to give notice arises when it asserts the claim, and the employee's duty to give notice arises when the employee asserts the claim after one year from the date of injury. For a truck driver, the action in question is the subsection (a) action, which is subject to Code Section 34-9-11.^[1][2]

Under Section 34-9-11.1(c), if the employer or insurer recovers more than the extent of its lien in a truck crash suit, the amount in excess "shall be paid over to the employee". For purposes of subsection (c) only, the term employee includes the injured employee and "those persons in whom the cause of action in tort rests or survives for injuries to such employee". For a truck driver whose injury gives rise to a tort cause of action, those persons share the subsection (c) notice and intervention rules. Section 34-9-11.1(e) states the express intent of the General Assembly that subsection (c) be applied prospectively and that it also be applied retroactively to injuries occurring on or after July 1, 1992. After a truck crash that injures a worker whose injury is compensable under the chapter, the one-year point in subsection (c) marks when the employer or insurer may assert the employee's tort claim if the employee has not brought the action, while the action itself stays subject to the applicable statute of limitations and to Code Section 34-9-11.^[1][2]

Attorney fees under O.C.G.A. 34-9-11.1(d)

Under Section 34-9-11.1(d), when the injured employee or those to whom the employee's right of action survives obtain a recovery from the other person by judgment or settlement or in another way, the attorney representing them "shall be entitled to a reasonable fee for services". If the employer or insurer has engaged another attorney to represent the employer or insurer in effecting recovery against the other person, a court of competent jurisdiction shall, upon application, apportion the reasonable fee between the attorney for the injured employee and the attorney for the employer or insurer "in proportion to services rendered". Subsection (d) also provides that Code Sections 15-19-14 and 15-19-15 apply. The same reasonable fee rule reaches a truck crash recovery by settlement as well as by judgment, since subsection (d) names both. In a truck accident case where the injured worker's recovery comes from a person other than the employer under Section 34-9-11.1(a), and the employer or insurer has engaged its own attorney, the reasonable fee is divided through this apportionment upon application to the court.^[1]

Exclusive remedy provisions of O.C.G.A. 34-9-11 and legislative history

Section 34-9-11(a) provides that the rights and remedies granted to an employee by the chapter "shall exclude and be in place of all other rights and remedies of such employee, his or her personal representative, parents, dependents, or next of kin". The exclusion also reaches all other civil liabilities at common law or otherwise on account of the injury or death. It reaches liabilities on account of loss of service as well. Under the exception in the same subsection, the employer may be liable to the employee beyond the chapter by expressly agreeing in writing to specific additional rights and remedies. For an injured truck driver, the employer may be liable beyond the chapter through that written agreement exception.^[2]

Under Section 34-9-11(a), contractual provisions "generally relating to workplace safety, generally relating to compliance with laws or regulations, or generally relating to liability insurance requirements" are not to be construed to create rights and remedies beyond those provided in the chapter. A clause in a truck driver's contract that relates generally to workplace safety does not, under this text, create such additional rights. This limit sits beside the subsection (a) exception for an employer's express written agreement to specific additional rights and remedies. The official code page's notes state that an amendment to Section 34-9-11, effective July 1, 2015, substituted the current exclusivity language in the first sentence and at the beginning of the second sentence of subsection (a). The notes add that the same amendment added "or her" at the end of the last sentence.^[2]

The immunity that Section 34-9-11(a) gives a construction design professional does not apply to the negligent preparation of design plans and specifications. It also does not apply to tortious activities of the professional or its employees while on the construction site where the employee was injured, where those activities are the proximate cause of the injury. Nor does it apply to professional surveys specifically set forth in the contract, or to intentional misconduct committed by the professional or its employees. For a truck driver hurt while working on a construction project, these limits mark where the design professional's immunity does not apply. Section 34-9-11(b) provides that the term "construction design professional" means a person licensed under the chapters of Title 43 named in that subsection as an architect, professional engineer, geologist, land surveyor or another listed profession, or a corporation organized to render professional services in Georgia through the practice of one or more such technical professions. The definition is stated for Section 34-9-11(a), which also allows employer liability beyond the chapter through an express written agreement to specific additional rights and remedies.^[2]

Section 34-9-11(c) provides that the immunity "shall apply and extend to the businesses using the services of a temporary help contracting firm" or an employee leasing company, as those terms are defined in other Code sections, when either the firm or company, or the business using its services, provides the benefits required by the chapter. A temporary help contracting firm or an employee leasing company "shall be deemed to be a statutory employer for the purposes of this chapter". Where a business uses the services of an employee leasing company to obtain a truck driver and the chapter's benefits are provided as subsection (c) describes, the immunity extends to that business. Section 34-9-11(a) keeps its separate exception for an employer expressly agreeing in writing to additional rights.^[2]

According to the history line on its official page, Section 34-9-11.1 was enacted by Ga. L. 1992, p. 1942, § 2 and amended by Ga. L. 1995, p. 642, § 2. The editor's notes on that page state that Ga. L. 1995, p. 642, § 13, not codified by the General Assembly, provides for severability. The history line for Section 34-9-11 begins with Ga. L. 1920, p. 167, § 12 and ends with Ga. L. 2015, p. 1079, § 1/HB 412.^[1][2]

See also

On related publications

• Georgia truck-crash law notes (truckaccidentlawyer.wiki)
• Liability and comparative fault in Georgia (caraccidentlawyers.wiki)