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DOWDY v. EARTHWISE RESTAURANT5/2/1996
On August 12, 1992, while exiting the Azalea restaurant in Atlanta, Pamela Dowdy allegedly fell and sustained injuries. She filed a workers' compensation claim and subsequently negotiated a settlement with her employer's insurer, Allstate Insurance Company.
On July 21, 1994, Dowdy filed this premises liability action against the restaurant, the owner of the restaurant, the owners of the shopping center in which the restaurant was located, and a valet parking service, among others. On February 21, 1995, Allstate moved to intervene to protect its workers' compensation lien. The trial court denied the motion. Also, without any motion to dismiss having been
filed, the trial court found the action to be time-barred and dismissed it. Dowdy appeals the sua sponte dismissal of her action, contending that under OCGA § 34-9-11.1, her action is not time barred.
When the trial court entered its order, former OCGA § 34-9-11.1 (c) provided that an employee suing a third-party tortfeasor must institute an action within one year of receiving the injury. Subsection (c) further provided in relevant part that " ailure on the part of the injured employee . . . to bring such action within the one-year period shall operate as an assignment to the employer or such employer's insurer of any cause of action in tort which the injured employee . . . may have against any other person for such injury . . . and such employer or insurer may enforce same in its name or in the name of the injured employee." Former OCGA § 34-9-11.1; see Ga. L. 1992, p. 1942, § 2.
Shortly after the order was entered, OCGA § 34-9-11.1 was amended. See Ga. L. 1995, p. 642, § 2. The new legislation, enacted April 18, 1995 and effective July 1, 1995, provides that an injured employee must institute a third-party action "within the applicable statute of limitations." OCGA § 34-9-11.1 (c). In this case, the applicable statute of limitation is two years. OCGA § 9-3-33. Language regarding automatic assignment of the employee's claim to the employer or insurer is not found in the new legislation. Subsection (c) now provides that if an action is not brought within one year of the 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." (Emphasis supplied.) Subsection (e) states, "It is the express intent of the General Assembly that the provisions of subsection (c) of this Code section be applied not only prospectively but also retroactively to injuries occurring on or after July 1, 1992." Dowdy's injury occurred on August 12, 1992.
1. Appellees argue that the trial court properly dismissed the complaint because Dowdy's cause of action was automatically assigned away when she failed to bring the action within one year. Indeed, the statute in effect at the time Dowdy filed this action provided that failure to bring an action operated as an assignment to her employer or her employer's insurer of any cause of action. The new legislation, though, deleted the automatic assignment language
and expressly provided that the revised statute applied retroactively to injuries occurring after July 1, 1992. OCGA § 34-9-11.1 (c) and (e).
The revised statute and Moore v. Savannah Cocoa, Inc., 217 Ga. App. 869 (459 S.E.2d 580) (1995), control the issues in this case. Moore suffered a compensable injury and was paid workers' compensation benefits. He filed suit against the owner of the premises, alleging that the owner's failure to maintain safe working conditions caused his injuries. While the action was pending in the trial court, former OCGA § 34-9-11.1 was in effect. 217 Ga. App.
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