Boles v. Hamrick, A89A2266

CourtUnited States Court of Appeals (Georgia)
Citation391 S.E.2d 418,194 Ga.App. 595
Docket NumberNo. A89A2266,A89A2266
Decision Date06 February 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.


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 of...

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18 cases
  • Sneiderman v. State, A15A1774.
    • United States
    • United States Court of Appeals (Georgia)
    • March 11, 2016
    ...on which the charge was based, along with the other factual allegations, adequately informed Sneiderman of the charged offense. Howell, 194 Ga.App. at 595, 391 S.E.2d 415. Although count 2 did not expressly allege that the concealed relationship was material to decisions of the DPD in its m......
  • Milburn v. Nationwide Ins. Co., A97A1150
    • United States
    • United States Court of Appeals (Georgia)
    • September 5, 1997
    ...and recover a judgment against the uninsured motorist, whether known or unknown." (Citations and punctuation omitted.) Boles v. Hamrick, 194 Ga.App. 595, 596, 391 S.E.2d 418 (1990). Smith v. Phillips, 172 Ga.App. 459, 460, 323 S.E.2d 669 (1984); State Farm Mut. Auto. Ins. Co. v. Noble, 208 ......
  • Knight v. Safety National Casualty Corp., A21A1434
    • United States
    • United States Court of Appeals (Georgia)
    • March 7, 2022
    ...& punctuation omitted).10 Although neither party makes mention of it, Kent and the cases it relies upon, see Boles v. Hamrick , 194 Ga. App. 595, 391 S.E.2d 418 (1990) ; Cont'l Ins. Co. v. Echols , 145 Ga. App. 112, 243 S.E.2d 88 (1978), were decided prior to the 2006 amendment of OCGA § 33......
  • Darby v. Mathis, A93A2590
    • United States
    • United States Court of Appeals (Georgia)
    • March 15, 1994
    ...against the uninsured motorist, as a condition precedent to a claim under the policy against the insurer. [Cit.]" Boles v. Hamrick, 194 Ga.App. 595, 596, 391 S.E.2d 418 The Darbys, having settled with and released Mathis, are not "legally entitled to recover" any amount from him and have by......
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