Williams v. Colonial Ins. Co. of California, A91A0199

• Decision Date: 03 May 1991
• Docket Number: No. A91A0199,A91A0199
• Citation: 199 Ga.App. 760,406 S.E.2d 99
• Parties: WILLIAMS v. COLONIAL INSURANCE COMPANY OF CALIFORNIA.
• Court: Georgia Court of Appeals

Page 99

406 S.E.2d 99

199 Ga.App. 760

WILLIAMS v. COLONIAL INSURANCE COMPANY OF CALIFORNIA.

No. A91A0199.

Court of Appeals of Georgia.

May 3, 1991.

Rehearing Denied May 28, 1991.

B.T. Edmonds, Jr., Albany, for appellant.

Alexander & Vann, William C. Sanders, Thomasville, for appellee.

BANKE, Presiding Judge.

The appellant filed this action seeking to recover for personal injuries he had allegedly sustained in an automobile accident which occurred on February 18, 1988. The complaint was filed on Monday, February 19, 1990, the last day of the two-year limitation period applicable to such actions. See generally OCGA §§ 9-3-33; 1-3-1(d)(3). The named defendant was served with the complaint on February 23, 1990; and on February 26, 1990, the appellee herein was served with a duplicate original in its capacity as the appellant's uninsured motorist carrier. The appellee moved for summary judgment on the ground that service had not been effected within the two-year limitation period, and the case is before us on appeal from the trial court's grant of that motion. Held:

" ' "In this State the filing of the petition in the clerk's office will be considered as the commencement of the suit, if service is perfected as required by law.... Filing followed by service creates a pending suit from the date of filing." ' [Cit.] 'Service is required to be made within 5 days (although not invalid where made later). [OCGA § 9-11-4(c) ] ... Where the statute of limitation accrues between the date of filing and the date of service, whether or not it relates back (if the service is more than five days after the filing ) depends on the length of time and the diligence used by the plaintiff.' [Cits.]" (Emphasis supplied.) Scoggins v. State Farm, etc., Ins. Co., 156 Ga.App. 408, 409-410, 274 S.E.2d 775 (1980). This rule has previously been applied by this court with respect to service against uninsured motorist carriers. See Johnson v. Shield Ins. Co., 189 Ga.App. 333, 375 S.E.2d 510 (1988).

It is apparent without dispute in the present case that the appellee insurer was served within five business days after the date of filing of the complaint, in accordance with OCGA §§ 9-11-4(c) and 9-11-6(a). (The latter Code section provides that "[i]n computing any period of time prescribed or allowed by [The Civil Practice Act] the computation rules prescribed in paragraph (3) of subsection (d) of Code Section 1-3-1 shall be used"; and OCGA § 1-3-1(d)(3) in turn specifies that where the period of time prescribed or allowed for an action is less than seven days, "intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.") It follows that the service against the appellee related back to the date of filing as a matter of law. Accord Southern Guaranty Ins. Co. v. Cook, 194 Ga.App. 613, 614(2), 391 S.E.2d 452 (1990).

In reaching a contrary conclusion, the lower court relied on Vaughn v. Collum, 236 Ga. 582, 224 S.E.2d 416 (1976), and State Auto Ins. Co. v. Reese, 191 Ga.App. 818, 383 S.E.2d 157 (1989), evidently being persuaded by the following language appearing in Reese that the general rules regarding the relation back of service have no applicability to uninsured motorist carriers: " 'In Vaughn v. Collum, [supra], the Supreme Court held that an uninsured motorist carrier is entitled to service within the time allowed for...