The first year belongs to the worker. O.C.G.A. § 34-9-11.1(c) divides the right to file a third-party tort action into two phases. During the first year after the injury, the injured employee has the exclusive right to assert the action. After the first year (but still within the applicable statute of limitations), the employer or insurer acquires a shared right to assert the action in the employee’s name or its own name. The framework gives the employee control during the most factually fresh period while allowing the lienholder to act if the employee does not.
The statutory framework #
Under O.C.G.A. § 34-9-11.1(c), the action against a third-party tortfeasor must be instituted within the applicable statute of limitations. The provision then states:
- 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.
The structure creates two distinct windows.
| Time period | Who can file third-party action |
|---|---|
| First year after injury | Employee exclusively |
| After first year, within SoL | Employee or employer/insurer (shared) |
| After SoL expires | No one |
The first-year exclusive right protects employee control #
During the first year, only the employee can bring the third-party action. The employer or insurer cannot file. This provision serves several purposes:
- Allows the employee to retain counsel, investigate the case, and develop the theory of liability
- Prevents the lienholder from filing prematurely or with theories the employee would not have chosen
- Preserves the employee’s role as primary plaintiff and lead decision-maker
- Allows time for medical treatment and prognosis development before litigation commences
The first-year window is significant in injury cases that require time for medical stabilization. The worker may not know the full extent of injury until well into the first year, and the exclusive right allows that development without external pressure to file.
The employer’s shared right after one year #
If the worker has not filed within one year, the employer or insurer may file. The right is shared, not exclusive. The worker retains the ability to file at any time within the SoL even after the first year. The shared structure means:
- Both the worker and the employer/insurer can file during the second year of the SoL
- A filing by either party preserves the action
- Coordination between worker and lienholder becomes more important during the shared-right window
- The worker can take over a case filed by the employer (subject to procedural rules)
The shared right does not extend the underlying SoL #
The personal injury statute of limitations under O.C.G.A. § 9-3-33 is two years. The first-year exclusive right + shared right framework operates within this two-year window. The employer’s shared right does not extend the SoL. If the SoL expires without filing by either the worker or the employer/insurer, the action is barred.
For wrongful death cases, the same two-year SoL under § 9-3-33 applies. The first-year/shared-right structure operates the same way.
Filing in the employee’s name vs. employer/insurer’s name #
When the employer or insurer files during the shared-right window, it may file in two ways:
- In the employee’s name (more common): The action proceeds with the worker as nominal plaintiff. The lienholder controls the litigation but the case is captioned in the worker’s name. Recovery goes to the worker, with the lien attaching at resolution.
- In the employer/insurer’s own name: The action is captioned with the lienholder as plaintiff. The recovery framework still includes worker compensation, but the procedural posture is different.
The choice depends on strategic considerations. Filing in the worker’s name is generally preferred because it preserves the worker’s ability to participate and may be more sympathetic to juries.
The 1995 amendment and retroactive application #
The current framework reflects the 1995 amendment to § 34-9-11.1. Moore v. Savannah Cocoa, Inc., 217 Ga. App. 580 (1995), addressed retroactivity, holding that the amendment permitting an employee to commence a third-party action within the applicable statute of limitations did not impair vested rights of the employer. The retroactive application preserves the framework even for injuries occurring before the amendment’s effective date.
Practical coordination between worker and lienholder #
The shared-right structure produces specific coordination patterns:
- Worker’s counsel files within the first year when possible to maintain control
- When delay is necessary (medical stabilization, identifying defendants), worker’s counsel communicates with the lienholder about timing
- When the worker does not file within one year, the lienholder may seek to file, often after consulting with worker’s counsel
- Joint filings or coordinated filings can occur, with parties agreeing on representation arrangements
Scenarios that trigger employer/insurer filing #
In practice, the employer or insurer typically files in the shared-right window when:
- The worker has not retained counsel or has not pursued the third-party case
- The worker is uncooperative with workers’ comp counsel
- The lienholder believes the SoL is approaching and the worker will not file in time
- The worker has discontinued treatment and is unavailable for case development
- The lienholder identifies a viable third-party defendant the worker has not pursued
The lienholder’s filing protects its subrogation interest by preserving the action against SoL expiration.
What the employer/insurer’s filing does not do #
A filing by the employer or insurer during the shared-right window does not:
- Bar the worker from participating in the case
- Eliminate the worker’s interest in recovery
- Make the lienholder the sole beneficiary of any judgment
- Change the substantive tort framework (liability still must be proven)
- Override the made whole limitation on lien enforcement
The recovery framework remains the same: the worker is entitled to full tort damages, and the lienholder’s recovery is limited by the subrogation rules.
Coordination with co-employee filings and other plaintiffs #
In cases involving multiple injured workers from the same incident, the first-year/shared-right framework applies to each individual worker’s claim. Coordination among multiple worker plaintiffs, each with their own lienholder, can complicate case management. Practical approaches include joint representation arrangements, coordinated discovery, and consolidated or related case management.
Filing decisions within the two-window framework #
The framework shapes plaintiff-side decisions:
- File within the first year when feasible to maintain full control
- Document medical and case development to support delayed filing when necessary
- Communicate with the lienholder during the first-year window to manage expectations
- Use the shared-right structure to allocate work between worker’s counsel and workers’ comp counsel
- Consider the SoL deadline carefully in cases with developing factual or medical questions
The framework’s intent is plaintiff-protective: it allows the worker control during the period when control is most needed, while preventing forfeiture of the action through inaction.
This article is for informational purposes only and does not constitute legal advice. Georgia workers’ compensation and personal injury law involves fact-specific analysis. For advice about a specific situation, consult a licensed Georgia attorney.