The Georgia Court of Appeals recently held in a vehicle collision case that a trial court did not err in dismissing a plaintiff’s personal injury lawsuit when she didn’t fully comply with the service requirements of O.C.G.A. § 40-12-2 in the Georgia Nonresident Motorist Act (NRMA).
Background
According to the complaint, the parties were involved in a serious auto accident on May 16, 2019, in Rome, Georgia. The plaintiff suffered serious bodily injuries. At the time of the crash, the plaintiff was a resident of Georgia, and the defendant was a resident of Alaska. The police accident report indicated that the defendant’s address was 33916 Nash Road in Seward, Alaska. The defendant’s auto insurance policy as well as his voter registration also listed the same address.
In May 2021, the plaintiff filed her complaint seeking damages for the defendant’s alleged negligence in causing the traffic accident. In compliance with the Georgia Nonresident Motorist Act, she served the Georgia Secretary of State’s office on May 17, 2021. Three days later, she sent a copy of the summons and complaint via certified mail to the Nash Road address in Alaska. The package was returned to sender after three failed delivery attempts, and the post office marked the package as “unable to forward.” On September 4, 2021, the plaintiff sent a copy of the summons and complaint via certified mail to the defendant’s attorney at her firm’s address in Marietta, Georgia.
In September, the defendant filed a Special Appearance and Answer, contending among other things that he hadn’t been sufficiently served. He later filed a motion to dismiss for lack of proper service. To support the motion, he submitted an affidavit that stated he’d sold the Nash Road property in December 2020, months before the plaintiff’s attempt to mail him the legal documents, and that he hadn’t resided at that property since that time. The defendant averred that he hadn’t received the summons, complaint, or any other documents related to a lawsuit. He further submitted a statement from a settlement which showed that the sale of the property happened in December 2020. After a hearing, the trial court granted the motion to dismiss.
The plaintiff’s primary argument on appeal was that the trial court erred by dismissing her complaint for insufficient service of process. She specifically argued that the defendant received sufficient notice of the complaint under the Nonresident Motorist Act when she sent the summons and complaint to his attorney, who was acting as the defendant’s agent.
The Court of Appeals Opinion
Presiding Judge Yvette M. Miller of the Georgia Court of Appeals wrote that the NRMA provides that service of process on a nonresident motorist is to be made by serving a copy of the complaint on the Georgia Secretary of State, and pursuant to OCGA § 40-12-2 is sufficient provided that notice of such service and a copy of the complaint and process are forthwith sent by registered or certified mail or statutory overnight delivery by the plaintiff to the defendant, if his address is known, and the defendant’s return receipt and the plaintiff’s affidavit of compliance with this Code section are appended to the summons or other process and filed with the summons, complaint, and other papers in the case in the court wherein the action is pending.
“Only when the notice authorized by statute is actually received can substituted service on an official of the State of venue become the equivalent of personal service. Failure to perfect service requires reversal, the judge wrote, quoting a 2000 decision. Thus, the fact that a defendant may have actual knowledge of a complaint by virtue of a process not in compliance with the statute isn’t adequate to effect service under the Act. Instead, the requirements of the NRMA “must be … fully complied with before a court of this State may obtain jurisdiction over a nonresident motorist.” In addition, the service and venue provisions of the Nonresident Motorists Act have always been strictly construed.
The plaintiff’s primary contention was that she provided sufficient notice to the defendant under the NRMA because she mailed the relevant documents to the defendant’s attorney, who was acting as the defendant’s agent. But the statute states that the notice must be “sent by registered or certified mail or statutory overnight delivery by the plaintiff to the defendant.” The Act doesn’t provide that sending the notice to any other person, even the defendant’s agent, is also sufficient. As a result, the Court of Appeals held that the statute requires a plaintiff to send the notice directly to the defendant’s address, not solely to his agent’s address, if different.
Because the plaintiff did not perfect service when she sent a copy of the summons and complaint via certified mail to the defendant’s attorney, the Court of Appeals affirmed the trial court’s order dismissing this case for insufficient service of process. Fuller v. Hendsbee, 2023 Ga. App. LEXIS 192 (Ga. App. May 5, 2023).
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