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Kroger v. Taylor

The trial court abused its discretion in denying an employer and its agent's subrogation claim in an employee's tort action, since the employee's action was timely, the employer and its agent claimed an interest in the employee's lawsuit, their subrogation rights were not protected by the existing parties to the lawsuit, and the denial of their motion to intervene disposed of the only legal remedy for their claim.

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The Kroger Company and its agent, Sedgwick CMS, appeal the denial of their motion to intervene in a worker’s compensation suit, arguing that the trial court erred because their subrogation claim is not barred by the applicable statute of limitations and because they are not adequately represented by the existing parties to the litigation. We agree with these contentions and reverse.

“Whether a motion to intervene is timely is a decision entrusted to the sound discretion of the trial court.” Citations and punctuation omitted. Payne v. Dundee Mills, Inc., 235 Ga. App. 514, 515 1 510 SE2d 67 1998. “But where intervention appears before final judgment, where the rights of the intervening parties have not been protected, and where the denial of intervention would dispose of the intervening parties’ cause of action, intervention should be allowed and the failure to do so amounts to an abuse of discretion.” Citations omitted. Id.; see also OCGA § 9-11-24 a a party “shall be permitted to intervene in an action” when 1 “a statute confers an unconditional right to intervene” or 2 the party is “so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest”.

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