Cotton States Mut. Ins. Co. v. Bogan, A90A0288

• Decision Date: 12 March 1990
• Docket Number: No. A90A0288,A90A0288
• Citation: 392 S.E.2d 33,194 Ga.App. 824
• Parties: COTTON STATES MUTUAL INSURANCE COMPANY v. BOGAN.
• Court: Georgia Court of Appeals

Page 33

392 S.E.2d 33

194 Ga.App. 824

COTTON STATES MUTUAL INSURANCE COMPANY v. BOGAN.

No. A90A0288.

Court of Appeals of Georgia.

March 12, 1990.

McNally, Fox, Mahler & Cameron, Randall K. Coggin, Fayetteville, Chambers, Mabry, McClelland & Brooks, Wilbur C. Brooks, Atlanta, for appellee.

BIRDSONG, Judge.

This is an interlocutory appeal of the trial court's order denying appellant's motion to dismiss the uninsured motorist carrier, or in the alternative, motion for summary judgment.

Appellant's motion alleged insufficient service of process upon the uninsured motorist and itself as uninsured motorist carrier.

Appellee's suit was for injuries sustained at some point during two successive automobile collisions. On April 7, 1986, appellee's car was struck by uninsured motorist Tate. While appellee and Tate were discussing the accident, a car driven by defendant Owen struck appellee.

Appellee initiated suit on April 6, 1988; one day before the two-year statute of limitation expired. On April 11, 1988, appellee obtained personal service of process on Owen. However, Tate apparently had departed the area and could not be found. An affidavit in the record reflects that appellee employed a private investigator to locate Tate, but that as of July 13, 1989, investigative efforts had not been successful. The affidavit, although listing certain action taken by the investigators and asserting that appellee's attorneys have made inquiry as to whether the investigator has located Tate, fails to list the dates or the frequencies of such actions and inquiries.

In denying the motion, the trial court entered certain findings of fact and conclusions of law on July 14, 1989. Among those pertinent findings of fact were that Tate had never been personally served and has never been served by publication; that appellant was served on April 28, 1988; and, that appellee filed an affidavit from the investigator who generally stated he had tried to find Tate without success and that investigation continues. The trial court, inter alia, reached the legal conclusions that the failure of appellee to serve defendant Tate within 463 days after the expiration of the statute of limitation, either personally or by publication, does not require dismissal of either the defendant Tate or the uninsured motorist carrier; and, that "[l]ack of service to this date [July 14, 1989] does not matter." Held:

The trial record reveals that the trial court apparently was laboring under the misapprehension that lack of service on the uninsured motorist was not required as of the date of its order, on the basis that service on the uninsured motorist was not a condition precedent to maintaining a suit against the uninsured motorist carrier.

We disagree and find that at the time the order denying appellant's motion to dismiss was entered, appellee had not fulfilled the statutory condition precedent of perfected service against the missing uninsured motorist tortfeasor Tate.

Clearly appellee could have proceeded to seek the trial court's authorization to serve the missing tortfeasor by publication. See generally OCGA § 33-7-11(e); Wentworth v. Fireman's Fund, etc., Ins. Co., 147 Ga.App. 854, 855, 250 S.E.2d 543. "Such service does not serve as the foundation for an in personam judgment against the tortfeasor, but it does serve as a condition precedent for recovery against the uninsured motorist carrier." Id. at 855, 250 S.E.2d 543; compare Smith v. Phillips, 172 Ga.App. 459(1), 323 S.E.2d 669 and Norman v. Daniels, 142 Ga.App. 456, 236 S.E.2d 121.

In Chitwood v. Southern Gen. Ins. Co., 189 Ga.App. 697(1), 377 S.E.2d 210, the majority of this court held that the Uninsured Motorist Act "requires that, as a condition precedent to initiation of a suit against the uninsured motorist carrier, the insured first pursues an action against the uninsured motorist to judgment. If that judgment is void on its face for insufficient service, it is subject to collateral attack by the uninsured motorist carrier. If, however, the underlying judgment shows on its [face] that service was perfected, whether by personal service on the uninsured motorist or by authorized publication, it is not subject to collateral attack for insufficient service." (First and last emphasis supplied.)

In a four-judge special concurrence, in Chitwood, it was further noted that although the plaintiffs were aware that personal service on the uninsured motorist was inadequate, they did not initiate service by publication as set forth in OCGA § 33-7-11(e). Id. at 702, 377 S.E.2d 210. The concurring judges then concluded that "[d]espite the unavailability of the known tortfeasor, the insured cannot proceed directly against the insurer but instead, in order to pursue his claim against his own insurer, must obtain a nominal judgment either by a John...