Giles v. State Farm Mut. Ins. Co.

• Decision Date: 05 November 2014
• Docket Number: No. A14A1276.,A14A1276.
• Citation: 765 S.E.2d 413,330 Ga.App. 314
• Parties: GILES v. STATE FARM MUTUAL INSURANCE COMPANY.
• Court: Georgia Court of Appeals

330 Ga.App. 314

765 S.E.2d 413

GILES

v.STATE FARM MUTUAL INSURANCE COMPANY.

No. A14A1276.

Court of Appeals of Georgia.

Nov. 5, 2014.

Reconsideration Denied Dec. 11, 2014.

Eric R. Johnson II, for Appellant.

Waldon Adelman Castilla Hiestand & Prout, Jonathan Myles Adelman, Atlanta, for Appellee.

Opinion

BOGGS, Judge.

James Giles appeals from the trial court's order granting State Farm Mutual Insurance Company's (“State Farm”) motion to dismiss based upon Giles' failure to diligently serve his renewal action upon State Farm, his uninsured motorist carrier. For the reasons explained below, we overrule Georgia Court of Appeals cases that incorrectly state how the grace period for service provided by OCGA § 9–11–4(c)should be calculated. Application of the correct law, as clarified by this opinion, requires us to reverse the trial court's order of dismissal.

The record shows that this case arises out of an automobile accident that occurred on June 3, 2005. On May 30, 2007, James Giles filed suit in Fulton County Superior Court against John Doe, the operator of a stolen vehicle that collided with Giles' vehicle. The same day, the Fulton County clerk issued a summons for State Farm. State Farm's registered agent was located in Cobb County. The Cobb County sheriff's office received the second original complaint and summons on May 31, 2007, and served State Farm on June 4, 2007. On November 7, 2011, Giles voluntarily dismissed his complaint without prejudice.

On Monday April 30, 2012, Giles filed a renewed complaint pursuant to OCGA § 9–2–61(c). The clerk issued a summons the same day, and the Cobb County sheriff's office file-stamped receipt of an entry of service form on May 7, 2012. This form states that the sheriff's office served “a copy of the within action and summons” on May 9, 2012.

State Farm moved to dismiss the renewed action on the ground that it was served “after the expiration of the statute of limitations and beyond the six (6) month renewal period.” Following a hearing, the trial court granted the motion based upon its conclusion that the five-day grace period for service “runs from the date a plaintiff files an action and receives the summons and complaint from the clerk.” As the complaint was served more than five days after the renewal action was filed, the trial court concluded that Giles had the burden of showing due diligence to perfect service as quickly as possible. The trial court also found that the plaintiff is responsible for delivery of the complaint and summons to the sheriff after receipt of the complaint and summons. Based upon Giles' failure to offer an explanation for the delay in delivery of the complaint and summons to the Cobb County Sheriff's Office, the trial court determined that he had failed to meet his burden of showing diligence and granted State Farm's motion to dismiss.

The trial court's decision is premised upon the following legal conclusions: (1) that the person making service refers to the party filing the action, and (2) that the five-day grace period begins to run from the time the complaint is filed and the summons is issued. We must therefore examine each of these issues in turn.

1. The starting point for our analysis is the origin of the five-day grace period for service. In Hilton v. Maddox & c. Contractors,

Inc.,

125 Ga.App. 423, 188 S.E.2d 167 (1972), we noted that before the enactment of the Civil Practice Act, Georgia courts held: “If the filing of the petition is followed by timely service perfected as required by law, although the statute of limitation runs between the date of the filing of the petition and the date of service, the service will relate back to the time of filing so as to avoid the limitation.” (Citations and punctuation omitted.) Id. at 425(1), 188 S.E.2d 167. See also Ga. Farm Bureau. Mut. Ins. Co. v. Kilgore, 265 Ga. 836, 837, 462 S.E.2d 713 (1995) (citing Hilton for same proposition). We then concluded

that this rule continues under the Civil Practice Act. It is provided by § 81A–103 that a civil action is commenced by the filing of a complaint, and under [Ga.Code.Ann,] § 81A–104 provision is made for the issuance and service of process—the service to be made within five days from the time of receiving the summons and complaint, although failure to make it within the five days will not invalidate a later service.

Hilton, supra, 125 Ga.App. at 426(1), 188 S.E.2d 167.

The current version of former Ga.Code.Ann. § 81A–104 can be found in OCGA § 9–11–4(c), which provides: “When service is to be made within this state, the person making such service shall make the service within five days from the time of receiving the summons and complaint; but failure to make service within the five-day period will not invalidate a later service.” In this case, the trial court concluded that “the reference in [OCGA §] 9–11–4(c) to ‘the person making such service’ refers to the party filing the action—not the person or entity who performs the physical act of serving the pleadings on a plaintiff's behalf.” It reasoned that the sheriff is merely acting as the plaintiff's agent in performing the plaintiff's duty to timely serve an action.

We disagree with this interpretation. In Kilgore, supra, the Supreme Court held that “OCGA § 9–11–4(c) provides a time frame for performance by the process server once service is sought, but does not provide a time limit within which service must be initiated by the plaintiff.” (Emphasis supplied.) 265 Ga. at 837, 462 S.E.2d 713. See also Callaway v. Goodwin, 327 Ga.App. 875, 761 S.E.2d 407 (2014). Additionally, in Scoggins v. State Farm Mut. Automobile Ins. Co., 156 Ga.App. 408, 274 S.E.2d 775 (1980), we noted that “the pertinent process statutes place sole responsibility on the clerk to issue the necessary copies of the complaint and summons to the sheriff or marshal to accomplish service” and that “[t]he Fulton County clerk was also authorized [by statute] to issue and transmit a second original and copy of the complaint and summons to the DeKalb County sheriff for service of process.” Id. at 410, 274 S.E.2d 775. We then concluded in Scoggins that the clerk's conduct in providing the summons and complaint to the sheriff one day after the complaint was filed “indicates no lack of diligence on the part of the plaintiffs.”

The current process statutes continue to place responsibility on the clerk to transmit the summons and complaint for service. OCGA § 9–11–4(a) states: “Upon the filing of the complaint, the clerk shall forthwith issue a summons and deliver it for service.” (Emphasis supplied.) OCGA § 9–10–72 provides:

If the defendant or any of the defendants reside outside the county where the action is filed, the clerk shall issue a second original and copy for such other county or counties and forward the same to the sheriff, who shall serve the copy and return the second original, with his entry thereon, to the clerk of the court from which the same was issued.

(Emphasis supplied.)

Based on these statutes governing service and the Supreme Court's decision in Kilgore, “the person making such service” in OCGA § 9–11–4(c) should not, as a matter of law, be deemed to be the party filing the action. If the General Assembly had intended the five-day period to begin running from the time the complaint and summons are issued, rather than the time of receipt by the person making service, it could have so stated. Instead, it created a rule obligating “the person making such service” to do so “within five days from the time of receiving the summons and complaint.”

2. With this understanding of the person making service under OCGA § 9–11–4, we turn to our law governing calculation of the five-day grace period to effect service.

As outlined above, the general rule should be properly stated as follows: “If the filing of the petition is followed by timely service perfected as required by law, although the statute of limitation runs between the date of the filing of the petition and the date of service, the service will relate back to the time of filing so as to avoid the limitation.”Hilton, supra, 125 Ga.App. at 425(1), 188 S.E.2d 167. See also Kilgore, supra, 265 Ga. at 837, 462 S.E.2d 713 ; Humble Oil & Refining Co. v. Fulcher, 128 Ga.App. 606, 609(3), 197 S.E.2d 416 (1973) ; Webb v. Murphy, 142 Ga.App. 649, 650, 236 S.E.2d 840 (1977). Therefore, if service is made within the five-day¹ grace period allowed by OCGA § 9–11–4(c), it relates back to the date the complaint was filed as a matter of law. See Williams v. Colonial Ins. Co., 199 Ga.App. 760, 406 S.E.2d 99 (1991). See also Milton v. Goins, 309 Ga.App. 865, 866(1), 711 S.E.2d 415 (2011) (plaintiff bears burden of proving lack of fault when service is not timely perfected as required by law). And

[w]here a complaint is filed near the statute of limitation and service is made after the statute expires and after the five-day safe harbor provision contained within OCGA § 9–11–4(c), the relation back of the service to the date of filing is dependent upon the diligence exercised by the plaintiff in perfecting service.

(Citation and punctuation omitted.) Moody v. Gilliam, 281 Ga.App. 819, 820, 637 S.E.2d 759 (2006). See also Parker v. Silviano, 284 Ga.App. 278, 279, 643 S.E.2d 819 (2007).

Over time, however, this court has issued decisions unintentionally changing the meaning of the general rule with regard to how the grace period should be calculated. While we reached the proper result based upon the particular facts before us in those decisions, our alteration of the rule could cause error in a case like this where the time frame between filing, receipt of the summons and complaint by the person making service, the expiration of the statute of limitation, and the date of service is very short.

In Bible v. Hughes, 146 Ga.App. 769, 247 S.E.2d 584 (1978), we paraphrased the general rule and unwittingly changed it as follows: “Where the statute of limitation accrues between the date of filing and the date of...