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P.F. Moon & Co. v. Payne6/27/2002
David Payne suffered a work-related injury on March 21, 1995, while employed by Dundee Mills, which paid him workers' compensation benefits. On March 21, 1997, Dundee Mills filed a claim under OCGA § 34-9-11.1 against P. F. Moon & Company, Inc. and Lockwood Greene to recover the disability benefits that it paid to Payne. David and Elizabeth Payne moved to intervene on August 21, 1997, and filed a proposed complaint of intervenor plaintiffs along with their motion. Dundee Mills subsequently dismissed its claims against P. F. Moon and Lockwood Greene on September 12, 1997. The trial court then denied the Paynes' motion to intervene, but we reversed this order in Payne v. Dundee Mills, 235 Ga. App. 514 (510 SE2d 670) (1998) ("Payne I"), and remanded the case.
The Paynes filed a new complaint on October 5, 1999. This complaint tracked the claims raised in the Paynes' proposed complaint from 1997. Both complaints included a claim for David Payne's pain and suffering, which had not been asserted by Dundee Mills in the original complaint, as well as a claim by Elizabeth Payne for loss of consortium.
P. F. Moon filed a Motion to Dismiss or in the Alternative Motion for Partial Summary Judgment, which the trial court denied. After the trial court certified the matter for immediate review, P. F. Moon filed an application for interlocutory appeal, which this Court granted. For reasons set forth below, we affirm.
P. F. Moon argues that (1) pain and suffering is an element of damages not included in Dundee Mill's original complaint, and that David Payne is impermissibly attempting to inject a new issue into the existing litigation, and (2) Elizabeth Payne's claim for loss of consortium was filed outside the four year statute of limitations. P. F. Moon relies on the general rule that "an intervenor takes the case as he finds it and cannot inject new issues." Undercofler v. Seaboard Air Line R.R. Co., 222 Ga. 822, 829 (7) (152 SE2d 878) (1966), and the following dicta from AC Corp. v. Myree, 221 Ga. App. 513, 516 (2) (471 SE2d 922) (1996):
Should an intervenor seek to litigate issues different from those already pending between the parties, to claim additional damages, or to raise additional defenses, . . . the intervenor's ability to raise these matters would be controlled by OCGA §§ 9-11-21 and 9-11-15 (c). Such a case would involve not only "intervention" but also independent claims.
When this Court reversed the trial court in Payne I, and ordered that the Paynes be allowed to intervene, the opinion relied upon the terms of OCGA § 34-9-11.1, which conferred an unconditional right of intervention. The opinion also relied upon the fact that Dundee Mills filed its complaint on the last day before the statute of limitation on David Paynes' personal injury claims expired and then later dismissed its complaint, which adversely affected Payne's ability to have asserted timely independent claims:
It is also undisputed that the Paynes could not have moved to intervene before expiration of the statute of limitation on Mr. Payne's tort claim because Dundee 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 against the contractors, we find that the trial
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