Can a Non-Party Join an Already Filed Case

Can you join in a lawsuit that is already under way?

Not long ago, we discussed an earlier facet of this case, where a Georgia federal district court held that a “shotgun” pleading violates the Federal Rules of Civil Procedure and doesn’t have enough clarity to provide the other side with fair notice of the claims or defenses against them.

The Georgia federal district court subsequently heard a Motion to Intervene filed by the Georgia Department of Administrative Services (“Department”) in a case that stems from a 2018 accident involving a big rig.

Typically, a lawsuit involves the parties, who are the plaintiff bringing the suit and the defendant, whom the suit is brought against. However, in some instances, an individual or entity who’s not a party to a pending action wants to become a party. They ask the court to join with a Motion to Intervene. To intervene and be admitted into the lawsuit, the intervenor must have an interest in the subject matter of the original suit. Here, the Department asked to intervene because it said it had that right by statute and to protect its interest in its subrogation lien against the Plaintiff.


On the evening of August 24, 2018, the Plaintiff Grady Bryan was injured in an accident that happened on the U.S. Highway 84 bypass/Georgia State Road 38 in Thomasville, Georgia. The Plaintiff was performing maintenance on a traffic light in a suspended lift bucket attached to a Georgia Department of Transportation utility-boom truck when his truck was struck by a tractor-trailer. The driver of the tractor trailer was driving on behalf of trucking company Greenwood Motor Lines, Inc. (the Defendant). The Plaintiff was thrown from the utility-boom truck’s bucket on impact and fell 25 feet to the ground. He alleged that he sustained serious physical and mental injuries from the fall, which have a great effect on his ability to work and care for himself. After his injury, he began getting workers’ compensation payments from the Department pursuant to O.C.G.A. § 34-9-1. As of July 15, 2021, he’d received $345,611.85 in workers’ compensation from the Department.

The Plaintiff sought damages in excess of $10.8 million including medical expenses, lost past and future wages, lost earnings capacity, and past and future pain and suffering. The Plaintiff’s wife sought an unspecified award for compensatory damages based on a loss of consortium due to her husband’s injuries.

The Department filed its motion to intervene on July 15, 2021.

The Judge’s Decision

Senior United States District Judge W. Louis Sands wrote in his opinion that under to Federal Rule of Civil Procedure 24(a), the Court may permit a party to intervene in a pending action upon a timely motion where the party

(1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.

Judge Sands explained that when considering a motion to intervene under Rule 24(a), the Court must consider the following:

  1. Whether the motion to intervene is timely;
  2. Whether the movant has an interest relating to the property or transaction that’s the subject of the action;
  3. Whether the movant is so situated that disposition of the action may impede or impair its ability to protect that interest; and
  4. Whether the movant’s interest is inadequately represented by the existing parties to the suit.

Georgia Law Permits an Employer to Intervene in an Employee’s Suit

The Department sought to intervene on the grounds that it maintains “an unconditional statutory right to intervene” pursuant to O.C.G.A. § 34-9-11.1 and because of its interest in protecting its subrogation lien against the Plaintiff’s recovery. Judge Sands said that Georgia Law O.C.G.A. § 34-9-11.1 permits an employer to intervene in an employee’s suit where an employee who sustains injuries on the job sues a third party that has legal liability for the injury.

In that case, the employer is granted a subrogation lien, and the employer may recover workers’ compensation benefits it paid to the employee. Here, the Department asserted that because it paid workers’ compensation benefits to its driver, the Plaintiff, it was entitled to recover from the Defendants or from funds received by the Plaintiff arising out of this action the full amount of benefits paid.

The Department asked that it be allowed to intervene under the following terms:

  1. That the Plaintiff present all available evidence of economic and non-economic damages to the jury;
  2. That the Plaintiff do nothing at trial to prejudice the Department’s lien;
  3. That the jury use a special verdict form itemizing economic and non-economic damages;
  4. That a bifurcated trial (a trial that’s split into two parts) for subrogation recovery follow the case in chief should the jury find in favor of the Plaintiff; and
  5. That a post-trial hearing on the apportionment of attorney’s fees follow the subrogation recovery phase of the trial.

After looking at the Federal Rules, the case law, Georgia statutes, relevant facts—and particularly the absence of opposition to the Department’s motion—Judge Sands found that intervention was appropriate. As such, the Department was entitled to recovery based on the subrogation pursuant to O.C.G.A. § 34-9-11.1. The judge found that the subrogation lien constitutes an “interest relating to the property or transaction that is the subject of the action” under Federal Rule of Civil Procedure 24(a)(2) and that absent intervention, the Department’s interest may be impaired in the course and disposition of this case.


As a result, the Department’s Motion to Intervene was granted, and the Department was permitted to intervene in this action as a third-party plaintiff. Bryan v. Swisher, 2021 U.S. Dist. LEXIS 222648 (M.D. Ga. November 18, 2021).

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