Rodriguez v. State Farm Mut. Auto. Ins. Co.
| Decision Date | 03 November 2022 |
| Docket Number | A22A1361 |
| Citation | 366 Ga.App. 65,880 S.E.2d 606 |
| Parties | RODRIGUEZ v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. |
| Court | Georgia Court of Appeals |
Jeremy Evan Pineres, Alexander Scott Cook-Green, for Appellant.
Rebecca Leigh Abraham, Justin Michael Sanders, for Appellee.
Moises Rodriguez sued Tiara Stinson for injuries he allegedly sustained in a motor vehicle collision. Pursuant to OCGA § 33-7-11 (d), Rodriguez served a copy of the complaint upon his purported uninsured motorist carrier, State Farm Mutual Automobile Insurance Company, which filed an answer, asserting insufficient service of process on Stinson, and later moved to dismiss the complaint on the ground that Stinson had not yet been served. The trial court granted the motion to dismiss, and Rodriguez appeals. Because the record supports the trial court's conclusion that Rodriguez did not exercise the greatest possible diligence in perfecting service on Stinson after the statute of limitation expired, the trial court did not abuse its discretion, and we affirm.
The motor vehicle collision that formed the basis of the complaint happened August 9, 2019. Rodriguez filed his complaint on July 2, 2021. After filing the complaint, Rodriguez coordinated with a private process server to serve Stinson. The process server was not immediately able to do so. On August 9, 2021, State Farm, asserting its right under OCGA § 33-7-11 to answer in the name of Stinson, filed an answer in which it asserted the defense of insufficient service of process as to Stinson.1 In mid-August, 2021, when the process server was unable to locate Stinson at two different addresses, Rodriguez employed a private investigations company to locate Stinson. Stinson confirmed with the investigator, via telephone, that she resided at a particular address in Rex, Georgia. The process server then made numerous unsuccessful attempts at the address provided by Stinson during late August and September and informed Rodriguez's counsel in late September that a hostile resident of the address had threatened the process server during one of the attempts.
In October 2021, the process server attempted to schedule an appointment with Stinson, who had a mobile hairstyling service. Stinson neither answered nor returned the process server's calls, so the process server again attempted service at Stinson's residence, making several more attempts between October 31 and November 28, 2021. During these attempts, on occasion, the process server observed vehicles at the residence that the process server previously had identified as belonging to Stinson.
On December 9, 2021, the statute of limitation expired.2 On January 4, 2022, counsel for Rodriguez instructed the process server's employer to continue attempting service. On January 21, 2022, State Farm filed a motion to dismiss, arguing that Rodriguez had not exercised the greatest possible diligence to serve Stinson after the statute of limitation expired.3 On January 27, 2022, Rodriguez's counsel was informed that the process server had been "out for a while" due to COVID-19, but "is ok and back today." The process server made additional unsuccessful attempts at service during the months of January and February. On February 4, 2022, Rodriguez filed a motion for service by publication, and on February 22, 2022, he filed a brief in opposition to State Farm's motion to dismiss, arguing that he had used the greatest possible diligence in effecting service. On March 3, 2022, a different process server succeeded in personally serving Stinson at her residence.
The trial court granted the motion to dismiss. The court determined that the record showed that no attempts at service were made between November 29, 2021, and January 6, 2022, 28 days of which were after the statute of limitation expired; therefore, Rodriguez had not met his burden of showing that he exercised "the greatest possible diligence during the relevant time period."4 This appeal follows.
Georgia law provides that when an action is filed before the applicable statute of limitation expires but is not served upon the defendant within the limitation period or within five days thereafter, "the plaintiff must establish that he acted in a reasonable and diligent manner in attempting to insure that proper service was effected as quickly as possible; and if [the plaintiff] is guilty of laches in this regard, service will not relate back to the time of filing of the complaint for the purpose of tolling the statute of limitation." Neely v. Jones , 271 Ga. App. 487, 488 (1), 610 S.E.2d 133 (2005) (citation and punctuation omitted), overruled in part on other grounds by Giles v. State Farm Mut. Ins. Co. , 330 Ga. App. 314, 320-321 (2) & n. 2, 765 S.E.2d 413 (2014). Moreover, if the defendant has raised a service defense in court and the statute of limitation has expired, the plaintiff bears an even higher duty of the "greatest possible diligence" to ensure proper and timely service. Van Omen v. Lopresti , 357 Ga. App. 9, 13-14 (2), 849 S.E.2d 758 (2020) (punctuation omitted). The burden of proving that the requisite degree of diligence was exercised rests with the plaintiff, and the determination of whether the plaintiff was guilty of laches in failing to exercise the necessary diligence falls within the sound discretion of the trial court. Neely , 271 Ga. App. at 488-489 (1), 610 S.E.2d 133. We will not disturb a trial court's finding in that regard absent an abuse of that discretion. Id.
Rodriguez argues that the trial court abused its discretion when it (a) found that he had not exercised the greatest possible diligence to obtain service on Stinson after the statute of limitation expired and (b) granted State Farm's motion to dismiss. He contends that the court should have focused on the totality of the facts, rather than only on the gap in his attempts at service "when the process server had COVID-19 during the month of December 2021." He also argues that the threat of bodily harm to a process server at the home of a defendant, when the defendant has confirmed her residence there, should satisfy the standard of "greatest possible diligence." Finally, he contends that this Court should reverse the trial court's grant of the motion to dismiss because Stinson has suffered no prejudice from the late service, as State Farm has asserted its right to defend the case on her behalf.
Rodriguez failed to serve Stinson before the applicable statute of limitation expired on December 9, 2021. Once the statute of limitation expired and State Farm asserted a defense of service in its answer, Rodriguez was required to act with the "greatest possible diligence" to ensure proper and timely service. See Fluellen v. Davis , 362 Ga. App. 512, 514-516, 869 S.E.2d 169 (2022) ; Van Omen , 357 Ga. App. at 13-14 (2), 849 S.E.2d 758. However, as noted by the trial court, there were no attempts at service between November 29, 2021 (ten days before the statute of limitation expired), and January 6, 2022 (twenty-eight days after the limitation period expired).
Rodriguez contends that he exceeded the standards outlined by this Court in Van Omen . However, in Van Omen , though there were no attempts at service for 87 days following the expiration of the limitation period, this Court noted that unexplained lapses for shorter periods of time also may indicate a failure to pursue service in a reasonably diligent manner. 357 Ga. App. at 16 (3), 849 S.E.2d 758. Moreover, we concluded in another decision that the trial court did not abuse its discretion in ruling that the plaintiffs had not met their burden of showing that they acted diligently in obtaining service and that dismissal of the action was authorized when the plaintiffs served their complaint on the defendant eighteen days after the complaint was filed, and ten days after the statute of limitation had run, and presented insufficient evidence about their service efforts. Parker v. Silviano , 284 Ga. App. 278, 279-280 (1), 643 S.E.2d 819 (2007).
Rodriguez argues that his case is similar to Feinour v. Ricker Co. , in which this Court determined that a plaintiff had exercised the greatest possible diligence in attempting to locate and serve the defendant.
269 Ga. App. 508, 511, 604 S.E.2d 588 (2004), overruled in part on other grounds by Giles , 330 Ga. App. at 320-321 (2) & n. 2, 765 S.E.2d 413. Indeed, there are similarities between the two cases, including numerous attempts over a period of months to serve the defendants at their suspected residences, evidence that vehicles...
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