Standard Guar. Ins. Co. v. Landers
| Decision Date | 28 October 1992 |
| Docket Number | No. A92A0860,A92A0860 |
| Citation | 426 S.E.2d 574,206 Ga.App. 803 |
| Parties | STANDARD GUARANTY INSURANCE COMPANY v. LANDERS. |
| Court | Georgia Court of Appeals |
Eason, Kennedy & Associates, Richard B. Eason, Jr., Atlanta, for appellant.
L.B. Kent, Columbus, for appellee.
This appeal arises out of an automobile accident which occurred when appellee's vehicle was rear-ended at a traffic signal by a car driven by Anthony Boynton and owned by his father Edward Boynton. The Boynton vehicle had no liability insurance coverage, but appellee's car was insured by appellant Standard Guaranty Insurance Company ("Standard") under a policy providing uninsured motorist coverage.
The record setting out the procedural history of this case is meager, but it appears that appellee originally filed a lawsuit against Anthony and Edward Boynton in December of 1987. In addition to serving the Boyntons, appellee served Standard as the uninsured motorist carrier. The return of service indicates that service upon Standard was made by serving David Morris, President, Morris Insurance Plan, Inc. Standard answered the complaint in its own name and filed a cross-claim against the Boyntons. In September 1988, appellee dismissed the case without prejudice, and on October 6, 1988, appellee refiled the case against the Boyntons. Although appellee did not denominate the action as a renewal action, the complaint was exactly the same except that the amount of damages was increased. Appellee again served the complaint on Standard by serving David Morris, president of Morris Insurance Plan, Inc. Standard filed an answer and cross-claim against the Boyntons and a "Motion to Quash Void Service" on the ground that it had not been properly served. Specifically, Standard alleged that service was invalid because its registered agent had not been properly served in the refiled lawsuit and because David Morris was not an agent authorized to accept service. The record contains an order dated February 1, 1989, which denies Standard's motion to quash. 1 Standard subsequently filed a motion to dismiss on the ground that the action was barred by the two-year statute of limitation. Although the record contains an order prepared, presented and filed by Standard's counsel which purports to grant Standard's motion, it appears that Standard prepared a pre-trial order and participated in the trial of the case. 2 Boynton also appeared and was represented by separate counsel. Throughout the trial Standard objected that it was not properly before the court, was not waiving any prior orders or defenses, and renewed its motion to dismiss based on insufficiency of service. The jury returned a verdict in favor of appellee for $20,000, and appellant appeals from the judgment entered on the verdict and the denial of its motion for new trial and motion for judgment notwithstanding the verdict.
1. OCGA § 33-7-11(d) provides, in pertinent part, that "[i]n cases where the owner or operator of any vehicle causing injury or damages is known, and either or both are named as defendants in any action for such injury or damages, a copy of the action and all pleadings thereto shall be served as prescribed by law upon the insurance company issuing the policy as though the insurance company were actually named as a party defendant." Under OCGA § 9-11-4(d)(1) and (7), in actions against a corporation service shall be made by delivering the summons and a copy of the complaint "to the president or other officer of the corporation, secretary, cashier, managing agent, or other agent ... authorized by appointment or by law to receive service of process."
The return of service from the original action shows that Standard was served by serving David Morris, president of Morris Insurance Plan, Inc. In support of its motion to...
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...agency relationship, conclusory allegations that an agent relationship exists are not sufficient. See Standard Guar. Ins. Co. v. Landers, 206 Ga.App. 803, 804-05, 426 S.E.2d 574 (1992). The court therefore must conclude that service was not proper because the summons and complaint were not ......
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...of agency must be received as evidence of a fact, which cannot be overcome by conclusionary affidavits." Standard Guaranty Ins. Co. v. Landers, 206 Ga.App. 803, 426 S.E.2d 574 (1992); see generally Hinely v. Barrow, 169 Ga.App. 529, 313 S.E.2d 739 (1984); Commercial Union Ins. Co. v. Taylor......
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...represented various insurance companies. Therefore, under the circumstances, this case is controlled by Standard Guaranty Ins. Co. v. Landers, 206 Ga.App. 803, 805, 426 S.E.2d 574. Service must be made upon an actual agent of the company, and not one who merely orders or sells its policies.......