Boles v. Hamrick, A89A2266

• Decision Date: 06 February 1990
• Docket Number: No. A89A2266,A89A2266
• Citation: 391 S.E.2d 418,194 Ga.App. 595
• Parties: BOLES v. HAMRICK.
• Court: Georgia Court of Appeals

Page 418

391 S.E.2d 418

194 Ga.App. 595

BOLES v. HAMRICK.

No. A89A2266.

Court of Appeals of Georgia.

Feb. 6, 1990.

Rehearing Denied Feb. 21, 1990.

Rubin Law Offices, Robert P. Hoyt, Stone Mountain, for appellant.

Jenkins & Eells, Frank E. Jenkins, III, Sharon C. Barnes, Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, and Fred M. Valz, III, Atlanta, for appellee.

SOGNIER, Judge.

Curtis Boles brought suit against Dewey Hamrick seeking damages for injuries incurred in an automobile collision. Boles had his insurer, Allstate Insurance Company ("Allstate") served with a copy of his complaint, apparently upon a theory that Hamrick was an uninsured motorist at the time of the collision alleged in the complaint. Upon Boles' affidavit that Hamrick could not be found, the trial court authorized service by publication on Hamrick. Hamrick answered and subsequently moved to dismiss Boles' complaint. The trial court granted the motion to dismiss on the bases of lack of jurisdiction over Hamrick, insufficiency of process and service of process, and the running of the statute of limitation on Boles' cause of action. Boles appeals.

Appellant concedes in his brief that the trial court's dismissal of his complaint on the merits as to Hamrick was proper. Appellant's sole argument is that the dismissal was improper as to Allstate. "[T]his court 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, [cit.], or unknown, [cit.]." Moss v. Cincinnati Ins. Co., 154 Ga.App. 165, 166, 268 S.E.2d 676 (1980). Appellant asserts that because Allstate was timely served and because Allstate had answered in its own name, no judgment against Hamrick, the uninsured motorist, was required as a condition precedent to his suit against Allstate. In support of his argument appellant cites the language in Allstate Ins. Co. v. McCall, 166 Ga.App. 833, 834, 305 S.E.2d 413 (1983) that "[i]n cases where the insurer elects to defend in its own name ... no judgment against the uninsured motorist is required as a condition precedent to a determination of questions of coverage. Moss, supra at 170, 268 S.E.2d 676." Appellant, however, has misread the context of the language he cites, which addresses the consolidation in the answer filed by the uninsured motorist carrier of the two separate issues typically involved in such circumstances: that...