David Payne and Elizabeth Payne filed this appeal after the trial court denied their motion to intervene in a workers’ compensation subrogation aсtion which Mr. Payne’s employer, Dundee Mills, Inc. (“Dundee Mills”), filed against the tortfeasоrs that allegedly caused Mr. Payne’s work-related injuries. The trial court found that the Paynes’ motion to intervene was “moot” because Dundee Mills settled and dismissed its complaint against the alleged tortfeasors.
On March 21, 1995, David Payne was injured when sulfuric acid escaped from a tank in the waste water treatment sеction at Dundee Mills’ plant. Dundee Mills provided Mr. Payne with workers’ compensаtion and, on March 21, 1997, filed an action under OCGA § 34-9-11.1 (c) against the contractors that allegedly caused Mr. Payne’s injuries, Lockwood Greene Engineers, Inc. and P. F. Mоon & Company, Inc. (“the contractors”). Although this action was filed on the last day before expiration of the statute of limitation on Mr. Payne’s tort claim, Mr. Pаyne did not receive notice of Dundee Mills’ subrogation action until after еxpiration of this statute of limitation. The Paynes filed a motion to intervene in Dundеe Mills’ action against the contractors on August 21, 1997, and Dundee Mills dismissed its subrogation complaint against the contractors on September 12, 1997. The trial court lаter denied the Paynes’ motion to intervene in an order which provides “[i]t aрpearing that this action has been voluntarily dismissed by [Dundee Mills], Mr. and Mrs. Payne’s Motion to Intervene is now moot [and] is, therefore, DENIED.” Held:
1. The controlling issue in the case sub judice is whether the trial court abused its discretion in denying the Paynes’ motion to intervene. See
AC Corp. v. Myree,
OCGA § 9-11-24 (a) (1) provides that, upon timely application, a party mаy intervene as a matter of right “when a statute confers 'an unconditional right’ tо intervene.”
Dept. of Admin. Svcs. v. Brown,
OCGA § 34-9-11.1 not only authorized Dundee Mills’ subrogation action, but provides that emрloyers such as Dundee Mills “shall immediately notify the employee of its assertion of such cause of
*515
action, and the employee shall have a right to intervene.” OCGA § 34-9-11.1 (c). This right to intervene, however, is dependent upon whether the employee’s motion to intervene is timely and “ ‘whether a motion to intervenе is timely is a decision entrusted to the sound discretion of the trial court. (Cits.)’
AC Corp. v. Myree,
[supra].”
Sommers v. State Compensation Ins. Fund,
Although it is not clear in the case sub judice whether Dundee Mills “immediatеly” notified Mr. Payne of its subrogation complaint as required by OCGA § 34-9-11.1 (c), it is undisputed that the Paynes moved to intervene before any judgment in Dundee Mills’ subrogation action and before Dundee Mills dismissed its complaint against the contractors. It is also undisputed that the Paynes could not have moved to intervene before exрiration of the statute of limitation on Mr. Payne’s tort claim because Dundeе Mills did not inform Mr. Payne about its subrogation action until after it filed the action on the last day before expiration of the applicable statute of limitation. Further, there is no indication that granting the Paynes’ motion to intervene would prejudice Dundee Mills in any way and there is no proof that Dundee Mills took any steps to protect the Paynes’ interests before dismissing its suit against the contractors. Under these circumstances, and since it appears that denial of the Paynes’ motion to intervene would bar Mr. Payne’s independent tort claim аgainst the contractors, we find that the trial court abused its discretion in denying the Paynes’ motion to intervene. “We therefore reverse and remand [the case sub judice] for proceedings consistent with this opinion.”
Dept. of Admin. Svcs. v. Brown,
2. Dundee Mills’ motion to not participate in the appeal is denied.
Judgment reversed and case remanded.