O.C.G.A.
O.C.G.A.

O.C.G.A. § 9-3-28 (2019)

Actions by informers

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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All actions by informers to recover any fine, forfeiture, or penalty shall be commenced within one year from the time the defendant’s liability thereto is discovered or by reasonable diligence could have been discovered.

History

Laws 1767, Cobb’s 1851 Digest, p. 563.; Code 1863, § 2866; Code 1868, § 2874; Code 1873, § 2925; Code 1882, § 2925; Civil Code 1895, § 3776; Civil Code 1910, § 4370; Code 1933, § 3-714.

Annotations

Cross references. Determination of precedence of actions by informers to recover fine, forfeiture, or penalty, § 9-2-47.

JUDICIAL DECISIONS Word “penalty” involves idea of punishment, whether enforced by civil or criminal procedure. Southern Ry. v. Inman, Akers & Inman, 11 Ga. App. 564, 75 S.E. 908, 1912 Ga. App. LEXIS 104 (1912). All persons empowered to sue for penalties are treated as informers,

and such actions are limited by this section. Greene v. Lam Amusement Co., 145 F. Supp. 346, 1956 U.S. Dist. LEXIS 2602 (D. Ga. 1956). Action imposing penalty as quasicriminal proceeding. - Action for purpose of imposing a penalty is in the nature

of a quasi-criminal proceeding. Sherman & Sons Co. v. Bitting, 26 Ga. App. 299, 105 S.E. 848, 1921 Ga. App. LEXIS 111 (1921). Recovery of penalty against telegraph company for failure to deliver message is governed by this section. Western Union Tel. Co. v. Nunnally, 86 Ga. 503, 12 S.E. 578, 1891 Ga. LEXIS 6 (1891). Action under Ga. L. 1906, p. 102, § 2 (see now O.C.G.A. § 46-9-48), regulating refunding of overpayments on freight, was controlled by former Code 1895, § 3776 (see now O.C.G.A. § 9-3-28). Central of Ga. Ry. v. Huson, 5 Ga. App. 529, 63 S.E. 597, 1909 Ga. App. LEXIS 53 (1909). Penalties against railroads fixed by former Civil Code 1910, § 2755 (see now O.C.G.A. § 46-9-216) for failure to sell tickets of connecting lines were governed by former Civil Code 1910, § 4370 (see now O.C.G.A. § 9-3-28). Atlanta & W.P.R.R. v. Coleman, 142 Ga. 94, 82 S.E. 499, 1914 Ga. LEXIS 599 (1914). Action based on violation of rule of railroad commission requiring carrier to furnish freight cars was governed by this section. Southern Ry. v. Inman, Akers & Inman, 11 Ga. App. 564, 75 S.E. 908, 1912 Ga. App. LEXIS 104 (1912). Treble damages for alleged viola-

tion of federal anti-trust laws are not penalty or forfeiture, but are compensatory damages. Greene v. Lam Amusement Co., 145 F. Supp. 346, 1956 U.S. Dist. LEXIS 2602 (D. Ga. 1956). This section does not apply to action by creditors against bank directors, when no fine is provided for. Neal v. Moultrie, 12 Ga. 104, 1852 Ga. LEXIS 99 (1852). Actions under Consolidated Omnibus Budget Reconciliation Act. - District court erred in ruling that a former employee’s improper-notification claim was barred by the applicable statute of limitations, O.C.G.A. § 9-3-28, because the employee’s suit was within the oneyear limitations period when the suit was filed because a Consolidated Omnibus Budget Reconciliation Act improper-notice claim accrued when a plaintiff either knew or should have known the facts necessary to bring an improper-notice claim, and the employee’s claim did not accrue until the employee learned from a lawyer that the employee should have received notice of the employee’s continuation right from the former employer. Cummings v. Wash. Mut., 650 F.3d 1386, 2011 U.S. App. LEXIS 17441 (11th Cir. 2011).

Notes of Decisions
Cited in 7 cases, 1986–2018 · leading case: W. Sky Fin., LLC v. State, 793 S.E.2d 357 (Ga. 2016).
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W. Sky Fin., LLC v. State, 793 S.E.2d 357 (Ga. 2016). · cites it 8× “As another ground for asserting a one-year statute of limitation should apply to the State’s action pursuant to the Payday Lending Act, Defendants point to OCGA § 9-3-28, which states: “All actions by informers to recover any fine, forfeiture, or penalty shall be commenced…”
Harrison v. Digit. Health Plan, 183 F.3d 1235 (11th Cir. 1999). “We find no error in the district court's application of the one-year statute of limitations provided by O.C.G.A. § 9-3-28 to plaintiff's penalty claim for improper notice of continuation of coverage, or in the court’s dismissal of plaintiff's claim for breach of fiduciary duty…”
Whildon L. Moyer v. Citicorp Homeowners, Inc., 799 F.2d 1445 (11th Cir. 1986). “§ 9-3-28 (1982) ("[A]ctions by informers to recover any fine, forfeiture, or penalty shall be commenced within one year from the time defendant's liability thereto is discovered”). The Moyers contend that either O.”
Georgia Gov't Transparency & Campaign Fin. Comm'n v. State Mut. Ins., 740 S.E.2d 419 (Ga. Ct. App. 2013). · cites it 2× “The State’s brief lists the following three enumerations of error: (1) “The trial court erred in ignoring the Commission’s own applicable five-year statute of limitations and instead applying an irrelevant ‘informant’limitations period under OCGA § 9-3-28”; (2) “The trial court…”
Georgia Gov't Transparency & Campaign Fin. Comm'n v. State Mut. Ins. Co. (Ga. Ct. App. 2013). · cites it 2× “4 The State’s brief lists the following three enumerations of error: (1) “The trial court erred in ignoring the Commission’s own applicable five-year statute of limitations and instead applying an irrelevant ‘informant’ limitations period under OCGA § 9-3-28”; (2) “The trial…”
W.A. Griffin, MD v. Aetna Health Inc. (11th Cir. 2018). “Because, as set out above, this complaint was properly subject to dismissal on the merits, we need not decide whether the limitations period for an ERISA claim for statutory penalties in Georgia is one year, see O.C.G.A. § 9-3-28, or six years, see O.C.”
Harrison v. Digit. Health Plan, 183 F.3d 1235 (11th Cir. 1999). “BACKGROUND Brenda Harrison was employed by Digital Equipment Corporation from March 1 We find no error in the district court’s application of the one-year statute of limitations provided by O.C.G.A. § 9-3-28 to plaintiff’s penalty claim for improper notice of continuation of…”
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