The Georgia Court of Appeals Affirms that Dismissal Due to Lack of Service is not an Adjudication on the Merits
February 16, 2018
Teena Anderson filed suit to recover for injuries sustained from a collision with a vehicle owned by Clarence Lewis and driven by his grandson, Dana Brown. The trial court dismissed Brown as a party due to lack of service and subsequently granted summary judgment for Lewis finding that Brown's dismissal was fatal to the derivative liability claim against Lewis under the family purpose doctrine. On appeal, the Georgia Court of Appeals held that Anderson's failure to perfect service on Brown did not constitute an adjudication on the merits and; therefore, provided no basis for granting summary judgment for Lewis. Anderson v. Lewis, 2017 WL 6419990 (Ga. Ct. App. 2017).
The family purpose doctrine arose from the principles of agency. Phillips v. Dixon, 236 Ga. 271, 272, 223 S.E.2d 678 (1976). “The policy behind the origin of the doctrine was the ever-increasing number of automobile collisions and the frequency with which the negligent driver was found to be judgment proof. In the case of a family at least, this factor was minimized by finding liability as to the owner of the car who allowed family members to use the car for family pleasures.” Id. In Wilson v. Ortiz, 232 Ga. App. 191, 196 (3), 501 S.E.2d 247 (1998), the Court held that “where the liability of the master to an injured third person is purely derivative and dependent entirely upon the doctrine of respondeat superior, a judgment on the merits in favor of the servant and against the third person is res judicata in favor of the master in a suit by such third person.” However, the dismissal of the servant for insufficient service of process is not an adjudication on the merits and does not bar an action against the master. Lewis at *2. Therefore, the dismissal of Brown due to Anderson's failure to perfect service on him did not constitute an adjudication on the merits and provided no basis for granting summary judgment for Lewis. Left unclear was whether service upon Brown would be required and whether statutes of limitation, etc., might present further obstacles to ultimate recovery.