Any time you file a lawsuit, you must notify the defendant through what is called “service of process”. You need to make sure that the person is aware of the lawsuit. A Georgia motorist recently appealed the trial court’s denial of her motion for service by publication in her negligence action in which she also sought to recover from her uninsured motorist carrier.
Background
On July 26, 2021, the plaintiff filed a personal injury lawsuit against the defendant, arising from a car accident that happened on September 8, 2020. In the complaint, he alleged the defendant’s negligence caused her both physical and mental pain and suffering. The plaintiff served her insurance company—as her uninsured motorist carrier—with a copy of the summons and complaint. The insurance company filed its answer, asserting that the plaintiff wasn’t entitled to recovery. The defendant also filed an answer and claimed the trial court lacked personal jurisdiction over him and service was insufficient.
The plaintiff then filed a “motion for appointment of special agent for service,” specifically requesting that a Georgia process server be appointed. The trial court granted the motion, appointed the process server, and authorized her to personally serve the defendant with the summons and complaint. The process server said she called the defendant and was told he’d moved to Indiana. He also gave her his then-current Indiana address. Despite this, the process server continued making unsuccessful attempts to serve him at his “home of record” in Thomaston, Georgia. After her final attempt a week later, the process server spoke with the apartment manager at the address, who also said the defendant had moved to Indiana to live with his daughter in 2020. The manager gave the process server his Indiana address, and she then called the defendant’s daughter, who confirmed that he’d had been living with her since January 2020. Given this information, on February 14, 2022, the plaintiff filed a motion for appointment of an Indiana-based special agent for service, which the trial court granted. On January 11, 2022, the deputy sheriff in Lake County, Indiana unsuccessfully attempted to serve the defendant.
Over a year later, on January 23, 2023, the plaintiff filed a motion for service by publication. The insurance company opposed the motion and moved for the case to be dismissed. Specifically, the insurance company alleged the plaintiff hadn’t been diligent in her efforts to serve the defendant and that the case should be dismissed because the statute of limitations had expired. After a hearing, the trial court denied the plaintiff’s motion for service by publication and granted the insurance company’s motion to dismiss. This appeal followed.
The plaintiff argued the trial court applied the wrong due diligence standard in denying her motion for service by publication when she was seeking to recover only from the insurance company.
The Opinion of the Court of Appeals
Judge Stephen Dillard opined that the Court of Appeals has interpreted the Uninsured Motorist Act to “require, as a condition precedent to a suit against the insurance carrier, that the insured first sue and recover a judgment against the uninsured motorist, whether known, or unknown.”
Before 1972, if for any reason a known uninsured motorist couldn’t be personally served, “the condition precedent could not be met and the insured could not recover from his uninsured motorist carrier.” But the General Assembly amended the statute to “allow service on the known uninsured motorist by publication upon a showing of due diligence on the part of the insured.” Although service by publication wouldn’t provide the court with jurisdiction to enter an in personam judgment against the uninsured motorist, it would allow the court to enter a ‘nominal judgment’ against the uninsured motorist sufficient to satisfy the condition precedent. Nevertheless, Judge Dillard explained that the amendment didn’t eliminate the need to meet the condition precedent of a judgment against the uninsured motorist—it simply provided the means by which the condition precedent could be met.
When a plaintiff seeks service by publication, she must exercise due diligence in attempting to personally serve the defendant. However, a heightened level of due diligence is required when, as here, the statute of limitations has expired, and the defendant has challenged the sufficiency of service in court. The plaintiff argued she should be held to a lower due diligence standard because when she moved for service by publication, she’d already settled this case with the defendant and was seeking recovery only from the insurance company. But there was no evidence that she’d settled her claim against the defendant or that he was otherwise removed from the case as a defendant.
More importantly, Judge Dillard found that the trial court made no mention of a settlement in its order, and it didn’t rule upon whether a settlement with the defendant would relieve the plaintiff from satisfying the Uninsured Motorist Act’s due diligence requirements. The Court of Appeals is a court of review, the judge wrote, not a court of first view. As such, issues that haven’t been ruled on by the trial court may not be raised on appeal. As a result, the Court declined to address the substance of this claim of error.
Does Laches Apply?
The plaintiff also claimed that the trial court erred by finding that laches applied in denying her motion for service by publication. Laches is a doctrine in equity whereby courts can deny relief to a claimant with an otherwise valid claim when the party bringing the claim unreasonably delays asserting the claim to the detriment of the opposing party.
Ordinarily, the correct legal standard for due diligence for service by publication under O.C.G.A. § 33-7-11(e) is diligence in determining that an uninsured motorist is either out of state or avoiding service. Nevertheless,
Georgia law provides that when an action is filed before the applicable statute of limitations expires but is not served upon the defendant within the limitations period or within five days thereafter, the plaintiff must establish that he acted in a reasonable and diligent manner in attempting to ensure that proper service was effected as quickly as possible; and if the plaintiff is guilty of latches in this regard, service will not relate back to the time of filing of the complaint for the purpose of tolling the statute of limitations.
However, Judge Dillard wrote, quoting an earlier case that, when, as here, the defendant has “raised a service defense in court and the statute of limitations has expired, the plaintiff bears an even higher duty of the ‘greatest possible diligence’ to ensure proper and timely service.”
Here, the plaintiff’s accident happened on September 8, 2020, and she filed her negligence action against the defendant about 10 months later on July 26, 2021. Because she sued to recover for personal injuries, the statute of limitations for her negligence claim expired on September 8, 2022—two years from the date of the accident. As of December 12, 2021, the plaintiff clearly knew the defendant had moved to Indiana in 2020, and he himself told the process server his then-current address. Nevertheless, the plaintiff’s appointed process server made at least three more unsuccessful attempts to serve the defendant at his previous Georgia residence. And while the trial court granted the plaintiff’s request to appoint a process server in Indiana, there was only one unsuccessful attempt to serve him there on January 11, 2022. Then, although there were no more attempts to serve the defendant in Indiana, the plaintiff didn’t file her motion for service by publication until January 23, 2023—over four months after the statute of limitations expired the prior September.
Moreover, according to the trial court, the plaintiff couldn’t explain why she waited over a year after learning of the defendant’s Indiana address to file her motion or why she made no attempts to effectuate service until four months after the expiration of the statute of limitations. Ultimately, the trial court found that a delay of four months between the expiration of the statute of limitations and seeking service by publication—especially when the plaintiff knew since 2021 that the defendant couldn’t be served in Georgia—was insufficient to establish that she acted in a reasonable and diligent manner to ensure proper service was made as quickly as possible.
While the plaintiff was correct that the appropriate legal standard for due diligence for service by publication under O.C.G.A. § 33-7-11(e) is diligence in determining that an uninsured motorist is either out of state or avoiding service, here the trial court did apply the due diligence standard under the statute. The trial court found that the plaintiff “likely met the legal standard for determining that [the defendant] resides out of state.” And importantly, even if a plaintiff satisfied the requirements of § 33-7-11(e), the Court of Appeals has held that if the defendant raises a service defense in court (which the defendant and the insurance company both did here), and the statute of limitations has expired, “the plaintiff bears an even higher duty of the ‘greatest possible diligence’ to ensure proper and timely service.” As a result, the Court of Appeals found no merit in the plaintiff’s argument.
Under the circumstances of this case, the Court of Appeals couldn’t say the trial court abused its discretion in finding that, following the expiration of the statute of limitations, the plaintiff failed to exercise the greatest possible diligence in attempting to serve the defendant. As a result, the Court of Appeals affirmed the trial court’s denial of the plaintiff’s motion for service by publication and its grant of the insurance company’s motion to dismiss. Clanton v. Taylor, 2024 Ga. App. LEXIS 23 (Ga. App. January 23, 2024).
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