Georgia Wrongful Death Case Dismissed Against Truck Company Because Deadline Expired

What follows in this article demonstrates why having a knowledgeable Atlanta truck accident lawyer on your side can really make the difference between winning and losing.

Debra Baldwin appealed the dismissal of her renewal action against a truck driver and his employer, a freight shipping and trucking company running freight hauling business from Georgia (“the Defendants”).

In August of 2004, Ms. Baldwin’s father, Herbert Washington, was killed in a collision with a semi. Ms. Baldwin and Herbert’s other daughter, Angela Washington, both brought wrong death actions. The first action was filed in October 2004 by Ms. Washington, alleging negligence (the “Washington action”). A year later, she settled with the driver and the trucking company. The court dismissed the Washington action with prejudice. “With prejudice” means it is done; there is no chance to revive the suit.

Debra’s Sister Wouldn’t Share the Settlement

Angela kept the settlement money from the Washington action for herself. The second wrongful death action was filed in August 2006, a few days before the expiration of the statute of limitations by Debra (the “Baldwin action”). The Defendants filed a motion in the Washington action to set aside the dismissal and to “reopen” the matter. The Defendants said the settlement in the Washington action was for the full value of the victim’s life and that, though Debra was entitled to a portion of that settlement, Angela refused to distribute the proceeds. They asked the trial court in the Washington action to either set aside the settlement or order Angela to split the money with her sister. Debra then moved to intervene in the Washington action.

At the same time, in the Baldwin action, the parties filed a joint motion to pause the proceedings until the issues were decided in the Washington action. In December 2010, the trial court granted the motion to continue in the Baldwin action, which was the final order entered by the court in that case. The pending motions in the Washington action were denied in October 2015, and the Court of Appeals said that Debra ostensibly dismissed the Baldwin action without prejudice in November 2017.

Debra Renews Her Wrongful Death Action

In December 2017, Debra purportedly renewed her wrongful death action (the “Baldwin renewal action”). Again, the Defendants moved to dismiss, arguing that her suit action was time-barred. The court agreed and held that the original Baldwin action was automatically dismissed for want of prosecution in December 2015 and that, because Debra failed to renew the action within six months — and because her action was filed outside the statute of limitation — her renewal action was too late and time-barred.

Debra argued that the dismissal of her renewal action was erroneous because her original Baldwin action shouldn’t have been automatically dismissed for want of prosecution. A case is dismissed for want of prosecution when nothing has happened for some time, or the plaintiff missed a hearing or trial.

Judge John A. Pipkin wrote for a panel of the Georgia Court of Appeals, disagreeing with Debra’s argument.

OCGA 9-11-41(e) provides as follows: Any action in which no written order is taken for a period of five years shall automatically stand dismissed, with costs to be taxed against the party plaintiff. For the purposes of this Code section, an order of continuance will be deemed an order. When an action is dismissed under this subsection, if the plaintiff recommences the action within six months following the dismissal then the renewed action shall stand upon the same footing, as to limitation, with the original action.

Judge Pipkin explained that the plain language of the statute says any action in which no written order is taken for a period of five years is automatically stand dismissed. The judge said this is mandatory, and dismissal happens by operation of law. Section 9-11-41 has “at least the dual purpose of preventing court records from becoming cluttered by unresolved and inactive litigation and protecting litigants from dilatory counsel,” the judge wrote, quoting a 1964 Georgia Supreme Court decision.

Debra’s Argument

Debra argued that her original action shouldn’t have been deemed dismissed by operation of law because she hadn’t been slow to act and because her case wasn’t one that was “cluttering up the trial court’s docket.” She said was active in both her original action and the Washington action by filing pleadings and engaging in discovery and that she didn’t “leave her case inactive for the statutory 5-year period[,] the judge did.” However, Judge Pipkin explained that the litigation efforts” of the parties aren’t enough to satisfy the requirements of § 9-11-41(e). The burden is on the plaintiff “to obtain a written order of continuance or other written order at some time during a five-year period and to make sure the same is entered in the record.” Debra could’ve sought an additional continuance, but she didn’t, the judge reasoned.

Switching gears, Debra then argued that the October 2015 order in the Washington action satisfied the order requirement in her original case because the two cases were “related”. Judge Pipkin cited Superior Court Rule 4.8, which says when an attorney in any action knows a case is or may be related to another that’s pending and assigned to a superior court judge in the same circuit involving the same subject matter or the same factual issues, the attorney must immediately tell the judges involved. The judges will then make a determination as to which one the action or actions should be assigned.

Judge Pipkin and the panel recognized that these two cases arose out of the same facts and were assigned to the same trial judge, but Debra didn’t cite any court decisions — and the court knew of none — that supported her notion that an order entered in one case can satisfy the order requirement of § 9-11-41(e) in a related case.

“Such a novel argument, the judge wrote, “is especially tenuous here, where [Debra] was never a party to the Washington action, and the Washington action stood dismissed for years before the 2015 order was entered denying the relevant motions.”

Finally, Debra argued that Georgia appellate courts have recognized an exception to the automatic dismissal rule in statute and that it should be applied in her case. However, Judge Pipkin noted that “[i]n those cases, the litigation had been resolved[,] and the only task remaining for the plaintiff was to have judgment entered.” Therefore, this narrow exception to § 9-11-41 (e) was inapplicable here.

Thus, because her original action was automatically dismissed in December 2015 and because her December 2017 renewal action wasn’t filed within six months of that dismissal — and was filed outside the statute of limitation — the Court of Appeals concluded that the trial court properly granted the Defendants’ motion to dismiss.


Interestingly, Presiding Judge Anne Elizabeth Barnes wrote a separate opinion, agreeing with Judge Pipkin but emphasizing that “dismissal is a harsh result under the circumstances of this case.”

The judge acknowledged that the five-year rule in § 9-11-41(e) has “the dual purpose of preventing court records from becoming cluttered by unresolved and inactive litigation and protecting litigants from dilatory counsel.” However, the judge went on:

[T]his is not a case whose continued pendency would serve only to clutter court records. Nor is this a case involving dilatory counsel. Rather, in the years after the filing of her case, Baldwin, through her counsel, conducted discovery, filed motions and briefs, wrote letters to the court, and attended status conferences and hearings.

She wrote that in March 2015, Debra’s attorney filed a motion for a special trial setting, noting that “Baldwin and her counsel [had] written the Court several times . . . and communicated their desire to see the case move forward.” But the trial court never ruled on her motion. Then, in June and September 2015, her counsel wrote letters again requesting to have the case placed on the trial calendar but received no response.

Judge Barnes found that the trial court’s failure to rule for such an extended period of time caused significant delay in the Baldwin case, despite Debra’s efforts to move the case forward and proceed to trial. No plaintiff can force a judge to sign an order, she said, and although the result in the case unfortunately is mandated by the existing statutory framework, “[t]his is the type of case that should be able to be reinstated.”

Despite Judge Barnes’ viewpoint, the judgment was affirmed, and Debra lost. Baldwin v. Gay, 2021 Ga. App. LEXIS 33 *; 2021 WL 282559 (Ga. App. January 28, 2021).


The statute of limitations is a law that provides the time limit on the right to bring a civil lawsuit to court. It’s in effect, the “deadline” for beginning a legal action. Lawsuits initiated after the statute of limitations has run are barred as untimely. Typically, if the deadline has passed, and an attempt is made to file a personal injury lawsuit, the defendant (the truck driver, trucking company, or insurance company) will file a motion with the court to dismiss the case. If granted, that will end your lawsuit. That’s why it’s so important to understand which statute of limitations applies to your personal injury case.

Here, because Debra’s original action was automatically dismissed in December 2015 and because her December 2017 renewal action wasn’t filed within six months of that dismissal (and was filed outside the statute of limitations), the Georgia Court of Appeals ruled that the trial court properly granted the truck driver and the trucking company’s motion to dismiss.

Contact Us

If you have a truck accident case, it’s not just black and white. You should work with an experienced Atlanta truck accident attorney Atlanta residents trust every day. Contact Tobin Injury Law, and we will work hard to ensure you are taken care of. We know what to look for and how to win.

You can contact us 24 hours a day, 7 days a week by calling 404-JUSTICE (404-587-8423) or by using our online contact form. Tobin Injury Law offers free consultations and will be glad to answer your questions.