Douglas v. Woon, s. A92A0928

• Decision Date: 08 September 1992
• Docket Number: A92A0929,Nos. A92A0928,s. A92A0928
• Citation: 205 Ga.App. 355,422 S.E.2d 61
• Parties: DOUGLAS et al. v. WOON et al. (Two Cases).
• Court: Georgia Court of Appeals

Page 61

422 S.E.2d 61

205 Ga.App. 355

DOUGLAS et al. v. WOON et al. (Two Cases).

Nos. A92A0928, A92A0929.

Court of Appeals of Georgia.

Sept. 8, 1992.

Zachary & Segraves, J. Ed Segraves, Decatur, for appellants.

Drew, Eckl & Farnham, John P. Reale, L. Lee Bennett, Jr., and Sullivan, Hall, Booth & Smith, John E. Hall, Jr., and Roger S. Sumrall, Atlanta, for appellees.

POPE, Judge.

These two actions arise out of the same automobile collision which occurred on October 2, 1988. The plaintiffs, both occupants of the same vehicle, brought separate identical actions against defendant O. Sang Woon and defendant John Doe, an unknown "phantom" motorist, alleging the negligence of both defendants combined to cause the collision in which they were injured. At the time the actions were filed on September 27, 1990, plaintiffs filed the affidavit of their attorney attesting that efforts had been made to locate defendant Woon at the address listed in the accident report, through the telephone book and through the insurer listed on the accident report, but he could not be found. In each case, the trial court issued an order concluding the defendant could not be located in Georgia and granting plaintiffs' motion for service by publication. The record shows a notice of publication was issued by the clerk of the trial court for each case on the day the actions were filed. Plaintiffs also served their uninsured motorist insurer.

Plaintiffs' uninsured motorist insurer filed an answer in both actions on behalf of defendant John Doe as well as a motion for summary judgment on the ground that the record showed no physical impact with the vehicle driven by defendant John Doe and the plaintiffs failed to produce corroborating testimony as to the existence of John Doe, as required by OCGA § 33-7-11(b)(2). The trial court granted these motions. Defendant Woon's insurer filed an answer in both actions on his behalf as well as a motion to dismiss for insufficiency of service upon Woon. The trial court also granted these motions. Plaintiffs appeal.

1. We agree that the trial court erred in granting defendant Woon's motion to dismiss. It is true that because Woon has not been personally served, in personam jurisdiction may not be obtained against Woon and therefore no judgment may be recovered from him personally or his insurer. See Smith v. Commercial Union Assur. Co., 246 Ga. 50, 268 S.E.2d 632 (1980). Nevertheless, a judgment against Woon may be recovered from plaintiffs' uninsured motorist insurer because he is, in essence, an uninsured motorist. Id. See also Bell v. Bennett, 189 Ga.App. 423, 375 S.E.2d 884 (1988); Wentworth v. Fireman's Fund etc. Cos., 147 Ga.App. 854, 250 S.E.2d 543 (1978); Norman v. Daniels, 142 Ga.App. 456, 236 S.E.2d 121 (1977).

We reject defendant's argument that plaintiffs failed to show due diligence in attempting to locate defendant because they did not show they had attempted to serve the defendant. The statute permitting service by publication does not require a showing that service has been attempted but only that the party to be served "has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the service of the summons...." OCGA § 9-11-4(e)(1)(A). Moreover, by granting the order permitting service by publication the trial court, in effect, made a finding of due diligence. See Starr v. Wimbush, 201 Ga.App. 280(2), 410 S.E.2d 776 (1991).

Once it is shown that, after diligent inquiry, the tortfeasor cannot be served, the action against the uninsured motorist insurer may proceed if the insurer was timely served. Norman v. Daniels, supra. The insurer does not argue that it was not properly served. The record shows that service copies of plaintiffs' complaints were received in the sheriff's...