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AC CORP. v. MYREE5/23/1996
On May 24, 1993, Willie Myree suffered an on-the-job injury while working for AtlantaStaff, Inc. AtlantaStaff paid him workers' compensation benefits and, more than a year but less than two years after the accident, brought suit against two parties it contended had
negligently caused Myree's injury: AC Corporation and Frito-Lay. See OCGA § 34-9-11.1 (c). In that lawsuit, AtlantaStaff sought recovery for "Myree's injuries, Myree's past and future medical expenses, lost wages and pain and suffering." Myree moved to intervene in that suit on May 1, 1995, pursuant to OCGA § 9-11-24 (a). He attached to his motion a proposed complaint seeking to recover from AC and Frito-Lay the same damages sought by his employer, as well as an affidavit asserting his interest in the case and the inability of AtlantaStaff to adequately protect his interest. He served these documents on Frito-Lay and AC Corporation by serving their attorneys in compliance with OCGA § 9-11-24 (c) and 9-11-5 (b). The trial court granted that order more than two years after his injury. We granted this interlocutory appeal by AC and Frito-Lay to determine whether the trial court erred in allowing Myree to intervene.
Because AtlantaStaff paid workers' compensation benefits on behalf of Myree, it had the right to bring this action on his behalf pursuant to OCGA § 34-9-11.1 (c). That same statute gave Myree an unconditional right to intervene in AtlantaStaff's action, even though Myree would be required to institute an independent action against the tortfeasor within two years from the date of injury. See Department of Admin. Svcs. v. Brown, 219 Ga. App. 27, 28 (464 S.E.2d 7) (1995) (discussing similar right of employer to intervene in employee's suit). Here, Myree filed a motion to intervene before the statute of limitations expired but did not receive leave of court to join the suit before that two-year period ended. After exploring the relationship between the Civil Practice Act's provisions on intervention, joinder of parties (OCGA § 9-11-21), and relation back of amendments (OCGA § 9-11-15 (c)), we conclude the trial court did not abuse its discretion by allowing this intervention.
1. AC and Frito-Lay properly state that if a party to the suit moved to add Myree as a party plaintiff to this lawsuit pursuant to OCGA § 9-11-21, the filing of a mere motion within the statute of limitation would be ineffective to do so. As we held in Doyle Dickerson Tile Co. v. King, 210 Ga. App. 326, 327 (436 S.E.2d 63) (1993), filing a motion to add a party does not toll the statute of limitation. A party seeking to add a party must first obtain a court order allowing that joinder, then file the amended complaint within the statute of limitation and serve the defendants with process in a timely manner or, failing that, show the amended complaint "related back" to the original complaint. OCGA § 9-11-15 (c); Dover Place Apts. v. A & M Plumb. &c. Co., 167 Ga. App. 732, 733 (307 S.E.2d 530) (1983). In this case, however, Myree seeks only to intervene in the action. For the reasons which follow, we hold that a motion to intervene does not necessarily require adherence to the Civil Practice Act's rules for adding parties and claims.
" here is a difference between the question whether one is a proper plaintiff or defendant in an initial action and the question whether one is entitled to intervene." Chiles v. Thornburgh, 865 F.2d 1197, 1212 n. 16 (11th Cir. 1989) (quoting Shapiro, 81 Harv. L. Rev. at 726). We have defined intervention as "the procedure by which a third person, not originally a party to a suit, but claiming an interest in the subject matter, comes into the case, in order to protect his right or interpose his claim." Hun
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