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My name is Lee Wallace and I am a
personal injury lawyer practicing in Atlanta, Georgia. I have been writing a series about Georgia’s
law that requires employees to reimburse their employers for workers’
compensation payments (the workers’ compensation subrogation lien).

If you have not had a chance to read the other blog entries, I will try
to get you caught up quickly. Often one of my personal injury clients
was on the job when he was hurt due to someone else’s negligence.
My client may have been hurt in a car accident when a negligent driver
struck her from behind while she was driving her company car, or perhaps when a
defective product that had no guard cut off her fingers.

Georgia workers’ compensation law was developed to cover injuries
to employees while they were on the job. The law gives a tradeoff. In
workers’ comp, the amount of money the employer has to pay is very
limited, substantially less than it would have to pay under normal circumstances.
On the other hand, the employer has to (well, is supposed to) pay every
time an employee is hurt on the job, regardless of whose fault the injury
was. However, under Georgia law, if my client gets money in the
car accident lawsuit, or the
product liability case, the employer (or more likely, its workers’ compensation insurance
company) can demand that my client reimburse it for the money it paid out.
O.C.G.A. § 34-9-11.1. The law makes several exceptions to this rule, however, and I have been
discussing those exceptions in these blog entries.

One significant exception is that some specific types of payments that
my client might receive are exempt from the workers’ compensation
subrogation lien – in other words, even if my client gets paid these
amounts, she does not have to pay the workers’ compensation carrier
or the employer out of these funds.

Uninsured motorist or underinsured motorist insurance. For example, a carrier has no lien on uninsured motorist benefits that
my client may recover.

In
Stewart v. Auto-Owners Ins. Co., 230 Ga. App. 265, 268 (Ga. Ct. App. 1998), the Court refused to allow
a workers’ compensation carrier (Auto-Owners) to assert a lien against
the benefits paid to the employee (Stewart) by an uninsured motorist carrier.
“In enacting O.C.G.A. § 34-9-11.1, the legislature intended
‘to provide for some amount of cost containment, [**885] by recompensing
the employer [for amounts recovered against a third party].’ Bennett,
215 Ga. App. at 425 (3).” Id. The recovery, therefore, only extends
to recovery against a third party.

By contrast, uninsured motorist benefits are something the employee has
purchased and paid for himself. The benefits arise from a “contractual
duty arising under [the plaintiff’s] insurance policy, and the payment
made to the plaintiff under the terms of her uninsured motorist policy
was not a recovery from a negligent third party.” Id.

“Accordingly, we find as a matter of law that Auto-Owners could not
assert a subrogation lien against Stewart’s uninsured motorist benefits.
To hold otherwise would require that we disregard the plain wording of
the Act, as well as the intent of the legislature, which we cannot do.”

In other words, my client, the employee, went out and bought and paid for
the uninsured motorist insurance all by himself. The only person who should
benefit from an insurance contract the employee made for himself is the
employee. It would be unfair to let the employer take advantage of the
fact that my client made provisions to protect himself in case he was
hit by a driver who did not have enough insurance to cover my client’s
personal injuries.