Opinion
No. 1:04-cv-3827-GET.
January 9, 2006
ORDER
The above-styled matter is presently before the court on AIG Claim Services' motion to intervene [docket no. 33].
Plaintiff filed the instant action on November 8, 2004, in the State Court of Fulton County, asserting state law negligence claims to recover damages allegedly sustained when plaintiff's car was struck by a commercial vehicle operated by defendant Anderson in the scope of his employment by defendant Pollen. Brothers, Inc. ("sullen"). Plaintiff also has filed a claim for workers' compensation benefits with proposed intervenor AIG. Defendants removed the case on December 30, 2004, pursuant to 28 U.S.C. 1332(a) for diversity jurisdiction, because defendant Anderson is a resident of Illinois. On November 7, 2005, AIG Claim Services ("AIG") filed a motion to intervene. On December 21, 2005, plaintiff and defendants notified this court of their intention to settle the claim. On January 4, 2005, plaintiff and defendants filed a stipulation of voluntary dismissal with prejudice.
Discussion
In order to intervene as a matter of right pursuant to Fed.R.Civ.P. 24, the movant must establish a statutory right to intervene, or must establish the following factors: (1) that the intervention application is timely; (2) that an interest exists relating to the property or transaction which is the subject of the action; (3) that disposition of an action may impede or impair the ability to protect that interest; and (4) that the existing parties to the lawsuit inadequately represent that interest. Purcell v. Bank Atlantic Fin. Corp., 85 F.3d 1508, 1511 (11th Cir. 1996). AIG seeks to intervene to protect its interest under O.C.G.A. § 34-9-1-11.1, which provides that when an employee has a right of action against a third party for injuries for which compensation is also available under the worker's compensation statutes, "and the employer's liability has been fully or partially paid, the. insurer shall have a subrogation lien." Further, "[t]he employer or insurer may intervene in any action to protect and enforce such lien." Id.
However, "[a]lthough subsection (b) of the statute creates a subrogation lien in favor of the employer or its insurer against the injured employee's recovery against a third party, the lien arises only after worker's compensation payments are made to the injured employee." Georgia Star Plumbing, Inc. v. Bowen, 225 Ga. App. 379, 381 (1997). In that case, as in the instant matter, plaintiff and defendants settled while the worker's compensation claim, which had been disputed by the carrier, was still pending. Accordingly, no benefits had been paid. The court held that the carrier had no subrogation lien before the payment of benefits, and therefore could not have intervened in the action before settlement. Id. The carrier was not deprived of all remedy, however; if it was determined that the carrier must pay the worker's compensation claim, it would have a lien against the employee in the amount of the settlement. Id. at 382. Because AIG has not yet paid any benefits to plaintiff, no subrogation lien has arisen and AIG has no right to intervene in the instant action. Therefore, AIG's motion to intervene [docket no. 33] is hereby DENIED.
Summary
AIG Claim Services' motion to intervene [docket no. 33] is DENIED.
SO ORDERED.