Bohannon v. Futrell, s. 76788-76790

• Decision Date: 08 November 1988
• Docket Number: Nos. 76788-76790,s. 76788-76790
• Citation: 189 Ga.App. 340,375 S.E.2d 637
• Parties: BOHANNON et al. v. FUTRELL. BOHANNON v. FUTRELL. WILSON et al. v. FUTRELL.
• Court: Georgia Court of Appeals

Page 637

375 S.E.2d 637

189 Ga.App. 340

BOHANNON et al. v. FUTRELL.

BOHANNON v. FUTRELL.

WILSON et al. v. FUTRELL.

Nos. 76788-76790.

Court of Appeals of Georgia.

Nov. 8, 1988.

Rehearing Denied Nov. 21, 1988.

Certiorari Granted Jan. 20, 1989.

Jack F. Witcher, Bremen, John E. Gilchrist, Atlanta, for appellants.

Johnson, Beckham & Price, J. Eugene Beckham, Carrollton, Rogers, MaGruder, Hoyt, Sumner & Brinson, J. Clinton Sumner, Jr., Rome, Tisinger, Tisinger, Vance & Greer, David H. Tisinger, Carrollton, Downey, Cleveland & Parker, Robert H. Cleveland, Marietta, Dickens & Irwin, Jeffrey S. Gilbert, Atlanta, Murphy, Murphy & Garner, Michael L. Murphy, Bremen, Mundy & Gammage, E. Lamar Gammage, Jr., Cedartown, for appellee.

BENHAM, Judge.

Appellant Suzanne Bohannon was a passenger in an automobile driven by appellant Katherine Wilson in February 1985 when it was struck by a vehicle driven by Futrell. The women filed suit a month later against Futrell and his employer, seeking damages for their injuries, and their husbands sought recompense for medical expenses and loss of consortium. The tortfeasor's employer was granted summary judgment following this court's opinion in Aubrey Silvey Enterprises v. Bohannon, 182 Ga.App. 738, 356 S.E.2d 693 (1987). Shortly thereafter, appellee J.C. Penney Casualty Insurance Company (J.C. Penney), the uninsured motorist carrier (UMC) for the Wilsons, and appellee State Farm Mutual Automobile Insurance Company (State Farm), the UMC for the Bohannons, were served with copies of the actions (in Case No. 76790 in June 1987, and in Case Nos. 76788 and 76789 in August 1987). Citing the failure of appellants to serve the UMCs within the two-year statute of limitation for personal injury (OCGA § 9-3-33), the trial court granted the motions to dismiss State Farm from Case No. 76788, and J.C. Penney from Case Nos. 76788 and 76790. J.C. Penney was also dismissed from Case Nos. 76788 and 76789 on the ground that it was not the primary UMC for the plaintiffs in those cases. See Georgia Farm, etc., Ins. Co. v. State Farm, etc., Ins. Co., 255 Ga. 166, 336 S.E.2d 237 (1985). These appeals are from the trial court's dismissal of the UMCs from the various lawsuits.

1. OCGA § 33-7-11(d) states that "[i]n cases where the owner or operator of any vehicle causing injury or damages is known, and either or both are named as defendants in any action for such injury or damages, a copy of the action and all pleadings thereto shall be served as prescribed by law upon the insurance company issuing the policy [containing uninsured motorist coverage] as though the insurance company were actually named as a party defendant."

An uninsured motorist carrier is entitled to service under OCGA § 33-7-11(d) within the time allowed for service on the defendant in the tort action. Vaughn v. Collum, 236 Ga. 582, 224 S.E.2d 416 (1976). This court has since applied that holding to affirm summary judgments granted to insurers on whom service was not made within the period of limitation. Williams v. Thomas, 183 Ga.App. 51(2), 357 S.E.2d 872 (1987). This court has also affirmed the trial court's grant of the UMC's motion to dismiss for failure to be served within the appropriate statute of limitation. Harris v. Allstate Ins. Co., 179 Ga.App. 343, 347 S.E.2d 368 (1986). The statute of limitation is two years for injuries to the person and four years for personal injury involving loss of consortium. OCGA § 9-3-33. Copies of the pleadings served on the UMCs in June and August 1987 were not timely insofar as the claims for personal injury from the February 1985 collision were concerned, but were "within the time allowed for service" insofar as the loss of consortium claims were concerned. OCGA § 9-3-33. Cf. Central of Ga. R. Co. v. Harbin, 132 Ga.App. 65, 207 S.E.2d 597 (1974). Therefore, the trial court did not err in dismissing the UMCs from the personal injury portions of the lawsuits but did err in dismissing the UMCs from the loss of consortium portions of the lawsuits.

Appellants argue that they did not have the right to add their UMCs as parties to the actions until it was ascertained (by way of this court's opinion in Aubrey Silvey Enterprises v. Bohannon, supra), that the tortfeasor did not have sufficient insurance coverage. Therefore, they reason, it was not possible to serve appellees prior to the determination that the tortfeasor was underinsured, and it was inappropriate for the trial court to dismiss the UMCs for appellants' failure to do the impossible.

Appellants' argument is based upon a misperception of the law. OCGA § 33-7-11(d) requires service on the UMC by duplicate original copy of the pleadings filed against the owner and/or operator of the vehicle causing the injury or damage. A plaintiff's compliance with OCGA § 33-7-11(d) does not make the UMC a party to the lawsuit. Commercial Union Ins. Co. v. Wraggs, 159 Ga.App. 596(1), 284 S.E.2d 19 (1981); Vaughn v. Collum, 136 Ga.App. 677, 679, 222 S.E.2d 37 (1975). See also Knight v. Ga. Farm, etc., Ins. Co., 184 Ga.App. 312, 361 S.E.2d 190 (1987); Chapman v. Burks, 183 Ga.App. 103, 357 S.E.2d 832 (1987); Moss v. Cincinnati Ins. Co., 154 Ga.App. 165, 268 S.E.2d 676 (1980); Home Indem. Co. v. Thomas, 122 Ga.App. 641, 178 S.E.2d 297 (1970). Once so served, the statute gives the UMC the right to participate directly in the proceedings by filing pleadings in its own name, thereby assuming the status of a party, or it may participate indirectly by filing pleadings in the name of the owner or operator of the injury-causing vehicle, thereby avoiding becoming a named party to the proceedings. Smith v. Phillips, 172 Ga.App. 459, 461, 323 S.E.2d 669 (1984). The UMC may also choose not to file any pleadings in the tort action. See Knight v. Ga. Farm, etc., Ins. Co., supra. No judgment can be entered against the UMC in a tort action in which the UMC has been served by duplicate original if the UMC has not chosen to participate directly. Smith v. Phillips, supra, Division 1. Since a UMC does not become a party upon being served with a duplicate original of the action against the tortfeasor, a plaintiff need not have a cause of action against the UMC to so serve the UMC.

Implicit in appellants' position is the belief that the UMC need not be served with a duplicate original until it has been ascertained that there is an uninsured motorist involved. The service requirement of OCGA § 33-7-11(d) should instead be read as a statutory prerequisite a plaintiff must fulfill in order to collect uninsured motorist benefits from the UMC following a tort judgment in favor of the plaintiff. Because the UMC may be liable for the amount which a plaintiff/insured "shall be legally entitled to recover" from an uninsured motorist/tortfeasor, and because a tortfeasor may become "uninsured" subsequent to the injury-causing collision (see e.g., OCGA § 33-7-11(b)(1)(D)(ii, iii, iv)), the UMC is entitled to statutory notice of the existence of a lawsuit in which it ultimately may be held financially responsible. If the UMC is not made aware by service pursuant to OCGA § 33-7-11(d) of the existence of a lawsuit in which it might become financially responsible, the plaintiff/insured will not be able to recover from the UMC. See e.g., Williams v. Thomas, supra; and Harris v. Allstate Ins. Co., supra, and cases cited therein. Therefore, it behooves a plaintiff who suffers injury as a result of the operation, maintenance, or use of a motor vehicle to have his UMC served with a duplicate original of the action filed against the owner/operator of the injury-causing motor vehicle at the time the action against the owner/operator is filed, in order to protect his ability to collect insurance proceeds from the UMC should the tortfeasor be or become an uninsured motorist.

2. Appellants maintain that under the auspices of OCGA § 9-11-15(c), service of the various complaints on the UMCs involved should relate back to the dates of the original filing of the complaints against the tortfeasor and his employer. Even assuming that OCGA § 9-11-15(c) applies to OCGA § 33-7-11(d) as it does to the statute of limitation, we disagree with appellants.

"[A]n amendment relates back to the date of the original pleadings if: (1) the claim asserted in the amendment arises out of the conduct, transaction, or occurrence set forth in the original pleading; (2) the party sought to be added has received during the period of limitation such notice of the institution of the action that he will not be prejudiced in maintaining a defense on the merits; and (3) the party sought to be added knew or should have known during the period of limitation that, but for a mistake concerning the identity of the proper party, the action would have been brought against it. [Cits.]" Rose v. Kosilla, 185 Ga.App. 217(2), 363 S.E.2d 623 (1987). Assuming that the first condition has been satisfied, there is no evidence that the second and third conditions have been met. Appellants suggest appellees were, or should have been, aware of the existence of a potential uninsured motorist claim against them by the fact that their insureds sought personal injury protection benefits from them. Be that as it may, an application for PIP benefits does not put an insurance carrier in receipt of notice of the institution of an action, and that is what OCGA § 9-11-15(c) requires. Inasmuch as the conditions for relation back of amendments under OCGA § 9-11-15(c) have not been met, the trial court did not err in failing to apply the statute to the cases at bar. Rose v. Kosilla, supra; Commercial Union Ins. Co. v. Wraggs, supra; Vaughn v. Collum, supra, 136...