Stout v. Cincinnati Insurance Co.
Stout v. Cincinnati Insurance Co.
Opinion of the Court
Elva Stout was injured in a vehicular collision. She filed suit against the driver and owner of the other vehicle, but did not serve Cincinnati Insurance Company in its capacity as her uninsured motorist carrier (UMC). After the statute of limitations had run, Ms. Stout discovered that the defendants’ liability insurer was insolvent. She dismissed her suit, then refiled it within the six-month renewal period authorized by OCGA § 9-2-61 (a). The UMC was served with the complaint in the renewal action, but moved for dismissal because it had not been served with the original action within the statute of hmitations. The trial court granted the motion to dismiss, and the Court of Appeals affirmed. Stout v. Cincinnati Ins. Co., 226 Ga. App. 220 (486 SE2d 195) (1997). We granted certiorari in order to address two questions: 1) whether the statute of limitations for serving a UMC pursuant to OCGA § 33-7-11 should be the same as that for serving the defendant, even though the defendant does not qualify as uninsured under the statute until after the applicable statute of limitations has run; and, 2) whether service on a UMC of an original action is necessary in order to allow for service in a properly filed renewal action. We answer the first question in the affirmative, and the second question in the negative. Accordingly, the judgment of the Court of Appeals must be reversed.
The precise question of whether initial service on a UMC of a valid renewal suit will satisfy the requirement of OCGA § 33-7-11 (d) was answered in United States Fid. &c. Co. v. Reid, 268 Ga. 432, 434 (491 SE2d 50) (1997): “[A] plaintiff can wait to serve a UMC until he files a valid renewal suit after the running of the statute of limitation.” This holding is based upon a recognition that OCGA § 33-7-11 (d) does not require service for the purpose of making the UMC a party to the underlying tort action, but does provide for service on the UMC “as though [it] were actually named as a party defendant.” Thus, service is intended only to give the UMC “notice of the exis
Reid is not inconsistent with Bohannon v. J.C. Penney Cas. Ins. Co., 259 Ga. 162 (377 SE2d 853) (1989) and creates no unwarranted exception to the principles stated therein. The actual holding of Bohannon, supra at 163, is that, under OCGA § 33-7-11 (d), the uninsured motorist carrier (UMC) “must be served within the time allowed for valid service on the defendant in the tort action. [Cit.]” (Emphasis supplied.) See also Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416) (1976). Thus, Reid is entirely consistent with Bohannon’s requirement that the UMC be served within the same time period as is applicable to the defendant in the underlying lawsuit. Nothing in Bohannon requires that the lawsuit that is eventually served on both the defendant and the UMC be the initial lawsuit which was served only on the defendant. The only “tort action” which can now ultimately result in financial responsibility for the UMC is the renewal action. Although totally unauthorized by Bohannon, the UMC urges recognition of an exception to the mutually applicable period for service when the underlying lawsuit is a renewal action, so that the
Judgment reversed.
Dissenting Opinion
dissenting.
The late Justice Weltner suggested in a dissent in Bohannon v. J. C. Penney Cas. Ins. Co., 259 Ga. 162 (377 SE2d 853) (1989), that this Court could shape a remedy for those who failed to obey the dictate of OCGA § 33-7-11 (d), but a majority of this Court properly rejected that suggestion, holding that the formulation of exceptions to the statute “is a task that is better left to the legislature.” Bohan-non, supra at 163. Because the majority opinion in this case perpetuates the mistaken creation of such a remedy in U. S. Fidelity &c. Co. v. Reid, 268 Ga. 432, 434 (491 SE2d 50) (1997), I must dissent.
In Reid v. U. S. Fidelity &c. Co., 223 Ga. App. 204, 206 (477 SE2d 369) (1996), the Court of Appeals suggested that this Court’s opinions in Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994), and Ga. Farm Bureau Mut. Ins. Co. v. Kilgore, 265 Ga. 836, 838 (462 SE2d 713) (1995), “have created the exception called for by Justice Weltner in his dissent in Bohannon . . . .” Although the majority opinion in U S. Fidelity &c. Co. v. Reid, supra, did not address that statement, Presiding Justice Fletcher made the same point in his special concurrence, suggesting that this Court should resolve the conflict. While I am reluctant to reconsider a decision made so recently, I feel compelled to do so in this case:
[I]t has never been the doctrine of any court of last resort that the law is to be a refuge and safe asylum for all the errors that creep into it. Indeed, the mind, private or official, which closes down upon all the errors it embraces, refusing to eject them when exposed, is no longer fit for the pursuit of truth. Courts, like individuals, but with more caution and deliberation, must sometimes reconsider what has been already carefully considered; and rectify their own mistakes.
City of Atlanta v. First Presbyterian Church, 86 Ga. 730, 733 (13 SE 252) (1891).
It is necessary, therefore, to reexamine our holding in Reid. Our holding there was based in part on this Court’s decision in Ga. Farm Bureau Mut. Ins. Co. v. Kilgore, supra, where we hypothesized, in a discussion of diligence in obtaining service on a UMC, that the Kilgores could have dismissed their action, refiled it within six months, and then served their UMC with the complaint in the renewal action. Since Kilgore was decided on the basis of diligence in obtaining service, the hypothetical statement in Kilgore was not necessary to the resolution of that case. Since the statement was not nec
The other ground for the decision in Reid was based on an analysis of the law pertaining to renewal actions and service issues in renewal actions. That analysis, involving as it does the rights of parties, ignores the real function of the statutory requirement of service on the UMC: “The service requirement of OCGA § 33-7-11 (d) should ... be read as a statutory prerequisite a plaintiff must fulfill in order to collect uninsured motorist benefits . . . .” Bohannon v. Futrell, 189 Ga. App. 340 (1) (375 SE2d 637) (1988). Since the purpose of the service requirement is to give the UMC notice of the potential for a claim against it, and not to make the UMC a party, there is no need to consider application of the renewal statute or whether the underlying suit was valid, voidable, or void. The only question to be answered in this and similar cases is whether the UMC has been served as though it were a party, which this Court determined in Bohannon to mean service within the period of limitation. If that service was made, the statutory prerequisite of notification has been satisfied and the UMC will be liable for any judgment obtained against an uninsured motorist. If the service was not made, the insured will have, in effect, waived the opportunity to recover under uninsured motorist coverage.
Reconsideration of the rationale of Reid leads me to the conclusion that we were in error in that case when we applied the law of renewal actions to the issue of service on UMCs. Accordingly, I would overrule U. S. Fidelity &c. Co. v. Reid, 268 Ga. 432, supra, insofar as it holds that the failure to serve a UMC within the applicable period of limitation may be remedied by dismissing the action and then serving the UMC.
The majority opinion in this case fails to accept the hard truth that Reid constituted an abandonment of the precedent of this Court in Bohannon. Worse, it entirely fails to address the fact that the holding in Reid was constructed of a combination of dicta and improper
If we were to overrule Reid, as we should, the basic question presented by this case, whether a plaintiff who has not served the UMC prior to the running of the statute of limitation may dismiss the case, still having made no service on the UMC, then file a renewal action and obtain valid service on the UMC, would be answered in the negative. This Court held in Bohannon that OCGA § 33-7-11 requires that a UMC be served within the applicable period of limitation. That requirement was not met in this case. The Court of Appeals was correct, therefore, in affirming the trial court’s judgment in the UMC’s favor. Because the majority opinion has held otherwise, I dissent.
I am authorized to state that Justice Sears joins in this dissent.
After the assertion in Reid concerning service on a UMC in a renewal action, there was a citation to Hobbs, supra, but that case did not involve a UMC and is not authority for how and when a UMC may be served.
Concurring Opinion
concurring specially.
1. Bohannon v. J.C. Penney Casualty Ins. Co.
2. The majority exempts suits against UM carriers from any statute of limitations requirement. Rather than adopt such a broad rule, I would adopt the rule suggested by Justice Weltner in his dissent in Bohannon and require plaintiffs to serve the UM carrier “as soon as reasonably possible after becoming aware, by whatever means, that there is a substantive doubt as to the existence of adequate insurance coverage of an event that might become the subject of an uninsured motorist claim.”
259 Ga. 162 (377 SE2d 853) (1989).
Reference
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