United States Fidelity & Guaranty Insurance v. Myers

Andrews, Judge. The incident which underlies this lawsuit is an automobile accident which occurred on June 20, 1990, between vehicles driven by Leon Myers, Sr., and Rochelle Lakes. Leon Myers, Sr.,. Vincent Kimberly, Leon Myers, Jr., Edward Myers and Rose Mary Myers commenced their action against Lakes and her employer, Courier Dispatch Group, on August 20, 1991. Lakes and Courier Dispatch filed their answer denying liability on October 3, 1991. According to the Myers and Kimberly, at the December 21, 1992 deposition of a witness to the accident, they became aware of the existence of a phantom driver’s involvement in the accident. Thereafter, [852] on January 19, 1993, the Myers and Kimberly filed a motion to add as a party defendant “John Doe” and to amend their complaint, which motion the trial court granted on March 30, 1993. United States Fidelity & Guaranty Insurance Company (“USF&G”) was served with the complaint, as the uninsured motorisl carrier, on April 13, 1993. USF&G subsequently filed its answer to the suit. On July 13, 1993, USF&G filed a motion to dismiss, arguing tha1 the Myers and Kimberly had failed to serve it within the two-yeai statute of limitation and that the suit should be dismissed. The tria court found that the statute of limitation was tolled from August 20 1991, until December 21, 1992, and denied the motion to dismiss USF&G filed an application for interlocutory review, which w( granted and this appeal followed. In its sole enumeration of error, USF&G claims that the tria court erred in denying its motion to dismiss since it was not server within the two-year statute of limitation as required by Bohannon v J. C. Penney Cas. Ins. Co., 259 Ga. 162 (377 SE2d 853) (1989) am Peoples v. State Farm &c. Ins. Co., 211 Ga. App. 55 (438 SE2d 167 (1993). See also State Auto Ins. Co. v. Reese, 191 Ga. App. 818 (383 SE2d 157) (1989). USF&G contends that under these cases, the plain tiffs’ failure to serve USF&G before the expiration of the limitatioi period should bar the complaint against USF&G. We agree. “As discussed in both Bohannon [v. Futrell, 189 Ga. App. 34( (375 SE2d 637) (1988)] and Reese, OCGA § 33-7-11 (d) requires service on the uninsured motorist carrier within the time allowed for ser vice on the defendant in the tort action. Compliance with the statu tory mandate does not confer party status on the carrier. Se< Bohannon at 341 (1). Instead, the carrier has the option of becomin¡ a party and filing its pleadings, or filing pleadings on behalf of th defendant owner or operator or both, or doing nothing. Therefore, th question of whether or not [USF&G] was timely served as the unin sured motorist carrier is not dependent on its status as a party to th suit by amendment. See OCGA § 9-11-4 (c). Nor is the issue notice o harm to the carrier, but squarely the timeliness of service. See Rees at 819 (1). The carrier must be served at the outset, ‘as though (it were actually named as a party defendant.’ OCGA § 33-7-11 (d). A1 though a plaintiff has the option of naming his carrier as a party de fendant or not, he has no option regarding service. The law require that the insurer be served so that it, not merely the insured, can as sess its potential liability from the time litigation commences agains the tortfeasor.” Peoples, supra at 56. The Myers and Kimberly claim that Bohannon and its progen are inapposite and cite Horne v. Carswell, 167 Ga. App. 229 (30 SE2d 94) (1983) and Jefferson Pilot Fire &c. Co. v. Burger, 176 Ga. App. 471 (336 SE2d 591) (1985), as support for their position. The [853] argue that the addition of the “John Doe” defendant should be governed under the principles applicable to OCGA § 9-11-15 (c) and that the instant situation differs from that in which it is discovered that a known motorist is uninsured. Decided October 18, 1994. William M. Schiller, Jane C. Taylor, for appellant. Bush & Miller, Betty B. Walker, MacDougald & Hendon, W. Zachary Hendon, Jr., for appellees. In Bohannon, 259 Ga. 162, supra, the Supreme Court rejected the argument that the statute of limitation on a claim under the uninsured motorist act should not run until it is determined that the negligent motorist is uninsured, and instead adhered to the rule that “the uninsured motorist carrier must be served within the time allowed for valid service on the defendant in the tort action. [Cit.]” Id. at 163. Although Bohannon involved a known motorist who was later determined to be uninsured, the same rationale applies here where the possible existence of an uninsured motorist was subsequently discovered. Generally, the uninsured motorist carrier’s right to be served timely is independent of any service considerations applicable to the defendant tortfeasor. Cf. Peoples, supra at 57. In some rare circumstances, the statute of limitation may be tolled for the defendant tortfeasor, and the period of time for serving the uninsured motorist carrier is extended commensurately. See, e.g., State Farm &c. Ins. Co. v. Harris, 207 Ga. App. 8 (427 SE2d 1) (1992) (statute tolled during bankruptcy automatic stay) and Jefferson Pilot, supra (statute tolled between death of defendant and appointment of estate administrator). However, no such circumstances are present in the instant case, and the trial court erred in finding that the statute of limitation was tolled until the plaintiffs discovered the possible existence of a phantom driver. Judgment reversed. Beasley, P. J., and Johnson, J., concur.