Wentworth v. Fireman's Fund American Ins. Companies
| Decision Date | 02 November 1978 |
| Docket Number | No. 56441,56441 |
| Citation | 250 S.E.2d 543,147 Ga.App. 854 |
| Parties | WENTWORTH v. FIREMAN'S FUND AMERICAN INSURANCE COMPANIES. |
| Court | Georgia Court of Appeals |
Nickerson & Gaulden, James C. Gaulden, Jr., Robert Dana Brooks, Atlanta, for appellant.
John F. Davis, Jr., Atlanta, for appellee.
We reverse the trial court's judgment, which was based on its finding that Wentworth failed to exercise "due diligence" in locating a known but missing tortfeasor. The request for service by publication pursuant to Code § 56- 407.1(d) and (e) should have been granted. For this reason, summary judgment in favor of Fireman's Fund, Wentworth's uninsured motorist carrier, should not have been granted; moreover, Fireman's Fund's correct remedy was not a summary judgment, as its motion raised a matter in abatement.
Under Code § 56-407.1(e), a motorist or vehicle owner against whom a claim is pending, but who cannot be located, is treated as an uninsured motorist, since "whereabouts unknown" is now equal to "identity unknown" (Norman v. Daniels, 142 Ga.App. 456(2a), 236 S.E.2d 121 (1977)) and " identity unknown" is equal to "uninsured motorist" under Code § 56-407.1(d). A trial court is authorized to order service by publication on the missing person if it is shown to the court's satisfaction that "such person resides out of the State, or has departed from the State, or cannot after due diligence be found within the State, or conceals himself to avoid the service of summons . . ." Code § 56-407.1(e). Such service does not serve as the foundation for an in personam judgment against the tortfeasor, but it does serve as a condition precedent for recovery against the uninsured motorist carrier.
If due diligence is shown in the attempt to track down the owner or operator of the vehicle causing the injury, the request for service by publication should be granted. Due diligence "is a question of fact which addresses itself in the first instance to the discretion of the trial court." Norman v. Daniels, 142 Ga.App. 456, 460, 236 S.E.2d 121, 125, supra. Under the evidence here, we conclude that a finding of due diligence was mandated; the trial court therefore abused its discretion in failing so to find.
The record shows without dispute the following course of events.
A collision between the appellant's automobile and the automobile driven by Emmitt Walker occurred on September 13, 1975. The investigating officer filed a report listing Walker's address as 90 Troup Street, Apartment 812, Atlanta. On July 6, 1976, the appellant filed suit against Walker but service could not be perfected as requested at the above address. After learning that service had not been perfected, the appellant on September 7, 1976, had a summons and complaint filed on Fireman's Fund, apppellant's uninsured motorists carrier. Fireman's Fund filed a timely answer, and then, on May 6, 1977, it filed a motion to dismiss, contending that personal jurisdiction never had been obtained over Walker, without which Fireman's Fund could have no ultimate liability.
The appellant thereafter commenced the following efforts to locate Walker. On June 13, 1977, a skip tracer was retained; he reported negative results on August 11, 1977. The appellant had information that the residents of 90 Troup Street, Apt. 812, were Walker's sister and brother-in-law, Annie and Leon Cross. On August 17, 1977, the appellant had served upon them subpoenas requiring them to appear for deposition on September 15, 1977. Attempts to trace Walker through the tag number listed on the accident report proved negative. Then, on September 15, Mr. and Mrs. Cross failed to appear at the deposition, at which time they would have been asked for information to help locate Walker.
All attempts to locate Walker having failed, the appellant, on September 16, 1977, filed a Motion for Service by Publication and accompanied it with an affidavit detailing the above efforts to locate Walker. Thereafter, on October 7, 1977, the appellant asserted that the failure of Mr. and Mrs. Cross to appear for deposition had been wilful and moved for an order compelling their appearance. The motion was granted by the trial court on November 3, 1977, and on November 16, 1977, at the time designated in the trial court's order, only Mrs. Cross appeared. The information she supplied, when pursued, did not ultimately lead to locating Walker. The pursuit and failure of these further attempts to locate Walker were detailed in a supplemental affidavit in support of the motion for service by publication.
Coincidentally with the sequence of events outlined above, Walker's liability insurer, Standard Guaranty Insurance Company, learned of the appellant's suit against Walker. On three occasions between September 23, 1976, and February 23, 1977, Standard Guaranty mailed correspondence to Walker at 808 Troup Street, Apartment 96, Atlanta. As an apparent indication that Standard Guaranty was in possession of Walker's correct address, all three letters were accepted; two return receipts were signed by Emmitt Walker, one by Louise Wilson.
The trial court, upon consideration of the above evidence, granted a summary judgment in favor of Fireman's Fund. It cited two reasons why it concluded that the appellant had not used due diligence in an effort to locate Walker: (1) The appellant did not try to locate Walker by enlisting the cooperation of Walker's liability insurance carrier, Standard Guaranty; and (2) the appellant waited over one year after filing suit before hiring a skip tracer.
We find within the whole of the evidence in the record a compelling showing that the appellant had used due diligence to locate Walker. Further we find specifically that the two reasons advanced by the trial court are insufficient to overcome the primary showing of due diligence.
(a) Failure to use Standard Guaranty as a resource. The trial court concluded "that the plaintiff (appellant) did not try to locate defe...
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