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Brown v. State Farm Mutual Automobile Insurance
Citations: 529 S.E.2d 439; 242 Ga. App. 313; 2000 Fulton County D. Rep. 991; 2000 Ga. App. LEXIS 172Docket: A99A2045
Court: Court of Appeals of Georgia; February 10, 2000; Georgia; State Appellate Court
Alona Brown's tort suit against Alton Snow, Jr. was dismissed due to her failure to timely serve the defendant within the statute of limitations period. Despite filing a suit shortly before the statute expired and serving her uninsured motorist carrier, State Farm, Brown never served Snow. After State Farm filed a motion to dismiss on January 19, 1999, Brown sought permission for service by publication on February 22, 1999, which the trial court denied. The court emphasized that for the statute of limitations to be tolled by the timely filing of a complaint, the plaintiff must demonstrate reasonable diligence in attempting service. Under OCGA 33-7-11(e), service by publication is permissible if the plaintiff shows due diligence in determining the defendant's whereabouts. The trial court has discretion to assess whether the plaintiff exhibited diligence, and its decision will not be overturned unless there is an abuse of discretion. Evidence indicated that Brown's initial service attempt was inadequate, and her delay in seeking publication—over four months after filing the complaint and more than a month after State Farm's motion—was seen as a lack of due diligence. The affidavit submitted by Brown's attorney lacked specific details about his efforts to locate Snow. Additionally, affidavits from a locator service employee and a process server were deemed insufficient as they provided only vague assertions of diligence without concrete evidence of attempts made. Dreeman attempted to serve the defendant on two occasions in early 1999 but was unsuccessful. His efforts, which took place after State Farm's motion to dismiss, revealed a lack of due diligence, as there were no attempts to locate or serve the defendant for three months between the initial failed attempts and the motion. Additionally, Brown argued that dismissing the action for failure to serve the defendant undermines public policy, as the uninsured motorist carrier has been properly served and is involved in the case. The purpose of uninsured motorist legislation is to provide coverage for individuals entitled to recover damages from uninsured drivers, thus protecting victims from negligent motorists. A motorist is considered uninsured if they cannot be personally served, but plaintiffs must serve the defendant by publication and obtain a judgment to recover damages. Under Georgia law, the uninsured motorist carrier can enter the litigation, contest liability, damages, and coverage, and assert defenses available to the defendant. The court found no merit in Brown's arguments, affirming the judgment.