Georgia First-Year Exclusive Right and the Employer’s Shared Right

Under O.C.G.A. § 34-9-11.1(c), the employer or its insurer can’t file the worker’s third-party claim during the first year after an injury. If the worker hasn’t sued within one year, the employer or insurer “may but is not required to assert the employee’s cause of action in tort”, in its own name or the employee’s. The worker keeps the right to sue after that. Nothing here extends the statute of limitations, which is two years for a personal injury claim under § 9-3-33.

The timeline

Period	Worker	Employer or insurer	Notice
First year after the injury	May sue	No right to file under (c)	None required by this sentence
After one year, within the limitations period	May sue, and "shall immediately notify" the employer or insurer	May sue, and "shall immediately notify" the employee	Each side has a right to intervene in the other's suit
After the period	Barred, unless an exception applies	Barred

“First-year exclusive right” is a shorthand. The statute doesn’t use the word “exclusive”. It says what the employer may do if the employee hasn’t sued within a year, and Dept. of Admin. Services v. Brown, 219 Ga. App. 27 (1995), reasoned that the department in that case had no right to its own action under subsection (c).

Other rules on the clock remain. Section 9-3-33 sets two years for injuries, and a tolling rule may apply to someone in particular. An employer’s filing has to be timely as well. See the two-year statute.

The history matters for older authorities

Before the 1995 change, a worker’s time was shorter. Moore v. Savannah Cocoa, 217 Ga. App. 869 (1995), describes the earlier text, under which employees had one year of receiving benefits to bring third-party actions. The court applied the revised statute to a case on appeal, reasoning that no vested right was impaired, and reversed. Older decisions on this point need to be read against that revision. Subsection (e) states an intent to apply subsection (c) to injuries on or after July 1, 1992.

Who is the “employee” here

For this subsection only, “employee” includes “not only the injured employee but also those persons in whom the cause of action in tort rests or survives for injuries to such employee”. So a family or estate holding the claim has the same position. See workplace death claims.

If the employer files

An employer can file for reasons of its own, such as protecting its lien as the deadline nears. Some consequences:

• The employee must be notified immediately, and has a right to intervene.
• If the employer or insurer recovers “more than the extent of its lien, then the amount in excess thereof shall be paid over to the employee”.
• The employer has to prove the claim, like anyone else.
• A fee for the work is covered by subsection (d).

A worker who ignores this may find the case going ahead on theories and strategy chosen by the lienholder. So a worker who wants control has reason to act, or at least to talk with the carrier.

The excess rule leaves questions. Is the lien measured by what was paid, with the made whole rule still applying? Who controls settlement? Those aren’t answered in this sentence, so counsel should work them out in writing, and consider the made whole rule for what happens at the end.

If the worker files after one year

The employee “shall immediately notify the employer or its insurer”, which then “shall have a right to intervene”. In Kroger v. Taylor, 320 Ga. App. 298 (2013), a worker sued just before the two-year mark, and the employer moved to intervene less than three months later. The Court of Appeals held the motion didn’t have to be filed within the limitations period, since the suit itself was timely. The right of intervention explains that decision.

What to do in year one

Waiting for the worker’s condition to stabilize isn’t the same as doing nothing.

Task	Why it can't wait
Identify all third parties	The two-year period keeps running
Preserve evidence	It doesn't last, and the employer's own records may be involved
Check for short deadlines	Government notice periods can be six or 12 months
Tell the carrier your plans	Reduces the chance of a competing suit
Keep compensation and tort accounts consistent	Statements carry over

For example, imagine a worker with a machine injury and a known maker, whose doctors want another six months before giving an opinion. Filing near the end of the first year, or giving a clear plan to the carrier, keeps control of the case without giving up that time.

Should the worker file inside the first year?

There’s no rule requiring it. Reasons to file sooner include control and evidence. Reasons to wait include treatment and investigation. A suit before the injury is understood risks a low early valuation, while a suit after the first year brings the notice rule and a possible competing filing. A lawyer will look at the facts, and mark both the one-year and two-year dates on the first day.

Sources

• Dept. of Admin. Services v. Brown, 219 Ga. App. 27
• Moore v. Savannah Cocoa, 217 Ga. App. 869
• Kroger v. Taylor, 320 Ga. App. 298
• Official Code of Georgia Annotated, November 2022 public release: §§ 9-3-33, 34-9-11.1

This page was last reviewed in November 2026 for general information. Laws and court decisions can change after that date. It is not legal advice and does not create an attorney-client relationship.