In Georgia, Don’t Dismiss the Case Without Prejudice Unless You Have Personal Service


5 years ago we covered this topic in a CLE we taught. Georgia has a nice rule where if you screw up on service( the actual handing of the papers to the person being served by the sheriff) and it does not happen within the statute of limitations (or reasonably close on its heels) then so long as you eventually get the person personally served, you can dismiss without prejudice and restart the lawsuit with a new filing, thereby curing the problem. How stupid plaintiff’s attorneys keep screwing this up is beyond me. This is a guy in Augusta who after eons of notice, never got the defendant served and so when they dismissed and refiled the case, the refiling was invalid.

The Court of Appeals  opinion in this personal injury lawsuit arising from a Georgia car accident makes it crystal clear. So long as you actually serve the defendant before dismissing, you are fine. If not, you are toast.

The case arose when the plaintiff filed a lawsuit against the at-fault driver following injuries he suffered in a car accident. In addition to the driver, the plaintiff served his uninsured motorist (UM) insurance carrier. The insurance carrier answered; however, attempts to serve the defendant were unsuccessful. Eventually, the plaintiff filed a motion to serve the defendant by publication, and the trial court granted the motion. The plaintiff did not take any further steps after two additional attempts to serve the defendant were unsuccessful.

Two years after the accident, the insurance company moved to dismiss the plaintiff’s complaint, based on the plaintiff’s failure to exercise due diligence in locating the defendant. In response, the plaintiff dismissed his action and filed a renewal action. The insurance company argued that the plaintiff was not entitled to renew the action because he failed to serve the defendant in the original action personally. The trial court agreed, and the plaintiff appealed.

Under Georgia law OCGA § 33-7-11 (e), in cases where a negligent vehicle owner cannot be located after due diligence, a copy of the complaint should be served upon the insurance company issuing the policy, as if they were a named defendant. In this case, the plaintiff argues that issues concerning service are irrelevant. However, the trial court cited the plaintiff’s lack of due diligence when they granted the insurance company’s motion to dismiss.

Moreover, OCGA § 9-2-61 (a) allows a plaintiff to recommence or renew an action after dismissing a civil action. However, the action must occur within the original statute of limitations or within six months after the discontinuance, which is later. However, the statute only applies to complaints that were valid before the dismissal. Valid actions are those that were personally served on the defendant. Here, the record shows that the plaintiff never personally served the defendant, and therefore the action was not valid when he discontinued the claim. Ultimately, the court reasoned that the plaintiff’s failure to exercise due diligence in locating the defendant barred a renewal action. Thus, the appeals court dismissed the plaintiff’s claims.

Have You Suffered Injuries in a Georgia Car Accident?

If you or someone you love has suffered serious injuries or died in a Georgia car accident, contact the attorneys at Christopher Simon, Attorney at Law. Our attorneys have an excellent reputation for successfully representing Georgia injury victims. Our attorneys understand the devastating physical, psychological, and financial toll that Georgia accidents have on a person and their family members, and maintain an active practice and keep up-to-date on all relevant statutory and procedural rules that can impact our clients’ cases. We have recovered substantial amounts of compensation on behalf of our clients, including payments for medical expenses, lost wages and benefits, and pain and suffering. Contact our office at 440-259-7635 to schedule a free initial consultation with an attorney on our team.

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