Smith v. Commercial Union Assur. Co.

• Decision Date: 24 June 1980
• Docket Number: No. 36040,36040
• Citation: 246 Ga. 50,268 S.E.2d 632
• Parties: SMITH v. COMMERCIAL UNION ASSURANCE COMPANY.
• Court: Georgia Supreme Court

Page 632

268 S.E.2d 632

246 Ga. 50

SMITH v. COMMERCIAL UNION ASSURANCE COMPANY.

No. 36040.

Supreme Court of Georgia.

Argued April 14, 1980.

Decided June 9, 1980.

Rehearing Denied June 24, 1980.

E. Clayton Scofield, III, Guerry R. Thornton, Jr., Atlanta, for appellant.

Stanley M. Karsman, A. Lee Lassiter, Savannah, for appellee.

NICHOLS, Justice.

This court granted certiorari to review the decision of the Court of Appeals in Smith v. Commercial Union Assur. Co., 153 Ga.App. 38, 264 S.E.2d 530 (1980). The case involves an interpretation of the uninsured motorist statute (Code Ann. § 56-407.1).

In 1976, appellant Smith was involved in an automobile accident allegedly caused by Samuel Lee Brown's failure to stop for a traffic signal. The record indicates that Brown recovered $2,300.00 for property damage to his automobile from his insurance carrier, Southeastern Fidelity Insurance Company (Southeastern). Smith recovered for medical expenses and lost wages under his personal injury protection (no-fault) coverage from his insurance carrier, Commercial Union Assurance Company (Commercial Union). Commercial Union was reimbursed for these payments by Southeastern under a subrogation notice. Later, Smith sued Brown to recover both actual damages and $50,000.00 for pain and suffering. Smith had the complaint served on his insurance carrier because after extensive effort he could not locate Brown. Since Commercial Union was aware that Brown carried liability insurance, they forwarded a copy of the complaint to Southeastern. Apparently, Southeastern is prepared to defend Brown in the tort action, and they have not formally denied coverage. However, Brown has not been located to be personally served, nor has he answered after service by publication. Thus, Smith cannot obtain in personam jurisdiction over Brown in order to obtain an enforceable judgment against him. "Our statutes pertaining to torts (Code Title 105) contain no provision for service by publication in any action for personal judgment for a tort against any person, resident or nonresident." Barnes v. Continental Ins. Co., 231 Ga. 246, 247, 201 S.E.2d 150 (1973); Veal v. General Accident Fire &c. Assurance, Corp., 128 Ga.App. 610, 197 S.E.2d 410 (1973). Cf. Melton v. Johnson, 242 Ga. 400, 249 S.E.2d 82 (1978). See also Gary, Trial Practice and Procedure, 31 Mercer L.Rev. 249 at 259-261. Because an in personam judgment cannot be obtained against Brown, Smith cannot recover from Southeastern. Without some specific statutory authorization, an action cannot proceed directly against the liability insurance carrier until a judgment is obtained against the tortfeasor or his liability is otherwise fixed. See, e. g., Arnold v. Walton, 205 Ga. 606, 54 S.E.2d 424 (1949). In short, Smith was precluded from proceeding with his tort action against either Brown or Southeastern.

Faced with this situation, Smith proceeded with his suit against Commercial Union based upon his uninsured motorist policy and pursuant to our uninsured motorist statute. Subsection (e) of this statute states in pertinent part that "(i)n cases where the owner . . . of any vehicle causing injury or damage be known and . . . be named as (defendant) in any action for such injury or damages, but such person . . . has departed from the State, or cannot after due diligence be found within the State, or conceals himself to avoid the services of summons, and this fact shall appear by affidavit to the satisfaction of the judge of the court, and it shall appear either by affidavit or by a verified complaint on file that a claim exists against the owner . . . in respect to whom service is to be made, and that he is a necessary or proper party to the action, such judge may grant an order that the service be made on the owner . . . by the publication of summons. A copy of any action filed . . . shall be served . . . upon the insurance company issuing the policy as though such insurance company were actually named as a party defendant. . . ." Ga.Code Ann. § 56-407.1 (e). (Ga.L.1972, pp. 882-883.)

In its answer, Commercial Union moved to dismiss the suit because it was known that Brown was insured. The trial court granted the motion to dismiss. On appeal the Court of Appeals affirmed, holding that where the tortfeasor absconds and cannot be located but is insured, he cannot legally be presumed to be uninsured, and therefore, the uninsured motorist statute does not apply. This court reverses.

The sole question presented in this case is whether or not the appellant can bring an action under the uninsured motorist statute against his insurance company. The following general principles apply to an interpretation of this statute: The purpose of uninsured motorist legislation is to require some provision for first-party insurance coverage "to facilitate indemnification for injuries to a person who is legally entitled to recover damages from an uninsured motorist, and thereby to protect innocent victims from the negligence of irresponsible drivers." 7 Am.Jur.2d 934, 935, Automobile Insurance, § 293. Uninsured...