Georgia: Subrogated Comp Insurer is not Claimant’s Fiduciary

Despite the right of the workers’ compensation insurance carrier to “assert the employee’s cause of action in tort” under some circumstances [see OCGA § 34-9-11.1), the Georgia carrier owes no fiduciary duty to protect the interests of the injured employee if it undertakes such action, held a Georgia appellate court. In the instant case, the employee died without pursuing a potential third-party claim. Two days before the statute of limitations for personal injury actions expired, the carrier sued the alleged tortfeasor and the alleged tortfeasor’s employer in its own name pursuant to OCGA § 34-9-11.1. Having expended more than $100,000 in workers’ compensation outlay, the carrier eventually settled the case for $45,000. The personal administrator of the employee contended the carrier owed the estate a fiduciary duty to protect its interests. The trial court disagreed and the appellate court affirmed. The employee had an exclusive right to bring the action for a year, and after that, the employee could intervene in the action brought by the insurer or bring his own, separate action at any time before the statute of limitations had run. Here the carrier had filed the civil action in its own name and the estate had done nothing.

Thomas A. Robinson, J.D., the co-Editor-in-Chief and Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law(LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Bush v. Liberty Mut. Ins. Co., 361 Ga. App. 475 (2021)

See generally Larson’s Workers’ Compensation Law, § 116.04.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see

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