In the Court of Appeals of Georgia
A20A0342. BELL v. STATE FARM MUTUAL AUTOMOBILE INS. CO.
The facts of this case raise some questions which, alas, the Court’s decision does not have to answer. Judah Bell (the Plaintiff) was in an automobile collision with James Brown. The accident occurred in Oakland, California. Bell filed an uninsured motorist claim in Fulton County, Georgia.
There was a Hit, but was there a Run?
When Bell filed the action, Bell named “John Doe” rather than “James Brown” as the defendant. This is the process that the law provides in cases in which an auto accident is caused by an unknown person.
If either the owner or operator of any vehicle causing injury or damages is unknown, an action may be instituted against the unknown defendant as “John Doe,” and a copy of the action and all pleadings thereto shall be served as prescribed by law upon the insurance company issuing the policy as though the insurance company were actually named as a party defendant; and the insurance company shall have the right to file pleadings and take other action allowable by law in the name of “John Doe” or itself. O.C.G.A. § 33-7-11(d)
In situations in which the cause of an accident is unknown (e.g., “hit and run” accidents), the uninsured motorist carrier (the insurance company) effectively acts as the unidentified tortfeasor. However, courts allow and require the insurance carrier the opportunity to investigate the claim (likely to prevent fraud). Flamm v. Doe, 167 Ga. App. 587 (1983)
Bell had a State Farm insurance policy, and it included coverage for uninsured motorists and she served State Farm with the complaint, as Georgia insurance law requires. Bell didn’t try to locate and serve notice of the lawsuit on Brown.
The (Un)known Driver
This leads to the unusual fact in the present case: the Plaintiff knew Brown. However, the Plaintiff here chose not to serve notice on Brown, nor to reveal her knowledge of Brown to her insurance carrier. It’s likely that the goal was perhaps to avoid hurting a friend, but in this case the Plaintiff cannot have it both ways: she cannot pursue an accident claim while also shielding someone she knows from the consequences of that claim.
You also need to consider how the Plaintiff’s relationship with Brown came to light.
Under an uninsured motorist claim, the plaintiff serving notice of the claim on a known defendant is a “condition precedent” to the plaintiff obtaining a judgment through an uninsured motorist claim. The trial court granted a motion for summary judgment by State Farm because Bell did not serve Brown, and therefore Bell did not meet this condition.
A case may be instituted against a ‘John Doe’ defendant only when the owner or operator of the vehicle is unknown.
Georgia law provides that “[a]n action may be instituted against a ‘John Doe’ defendant only when the owner or operator of the vehicle is unknown. OCGA § 33-7-11 (d). Where known, he or she must be named as a defendant, although service by publication is authorized if after due diligence such defendant cannot be found within the state. OCGA § 33-7- 11 (e); see Douglas v. Woon, 205 Ga. App. 355 (1992).” Kannady v. State Farm Mut. Automobile Ins. Co., 214 Ga. App. 492, 494-95 (4) (1994).
The Plaintiff tried to work around this by referring to Smith v. Phillips (172 Ga. App. 459 (1984)), claiming that she was not required to name Brown as a defendant or serve him. In that case, however, the plaintiff did name a defendant, but was simply unable to locate the defendant to serve notice, and thus served him by publication. (Service by publication refers generally to situations in which the person served is out of state, or otherwise cannot be found. In this situation, the court’s clerk publishes the service information in a newspaper for a period of time, and this is deemed sufficient notice of the lawsuit to the unreachable defendant.)
The Court found the facts in Smith v. Phillips distinct from the facts here, because the plaintiff here never identified the known defendant: “there was never “a claim pending” against Brown because Bell did not name him as a defendant or attempt to serve him.” So, what is crucial here is that if an uninsured motorist is known, the name must be disclosed before a claim can go forward.