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Court Rejects Renewal of Flawed Original Action

September 16, 2019

            On April 18, 2013, Regina Jenkins was driving with her mother, Sarah, when Kyle Keown rear-ended them and caused them both injuries.  The Jenkins filed suit against Keown on April 17, 2015, two days before the expiration of the two-year statute of limitation. After more than one year, the Jenkins attempted to serve Keown at his mother’s home in June 2016.  GEICO Indemnity Company (“GEICO”), the uninsured motorist carrier for Sarah, filed an answer and later moved for summary judgment, raising the issues of personal service on Keown and timeliness under the statute of limitation.  In response, the Jenkins voluntarily dismissed their action and filed a renewal action on March 9, 2017.

 

            On September 20, 2017, GEICO again moved for summary judgment on the ground that the Jenkins did not successfully serve Keown in the original action and, therefore, the renewal action was barred by the statute of limitation. GEICO further argued that Jenkins' claims against GEICO were barred because they would not be able to obtain a judgment against Keown, which they were required by law to obtain. In May 2018, the trial court granted GEICO’s motion and the Jenkins’s appealed. Jenkins v. Keown, 830 S.E.2d 498, 499 (Ga. Ct. App. 2019).

 

            The privilege of renewal applies only to actions that are valid prior to dismissal. O.C.G.A. § 9-2-61(a).  To constitute a valid action, the complaint must be served personally on the defendant. In support of its motion, GEICO submitted affidavits from Keown that stated that he did not live with his mother when she was served in June 2016. Accordingly, the trial court held that the defendant was not served in the original action before it was dismissed and, therefore, the original action was invalid and not entitled to renewal.

 

            Even if Keown was not properly served, the Jenkins’s also argued that their action was timely due to the statute of limitations being tolled under O.C.G.A. § 9-3-99. Specifically, they argued that Keown committed a crime in violation of O.C.G.A. § 40-6-49(a) and the statute of limitations should be tolled even though Keown was not actually accused of a crime. However, the court found that there was nothing in the record showing that Keown was ever issued a uniform traffic citation, nor had the Jenkins’s adduced any evidence that Keown or anyone else was or could have been prosecuted following the collision.  Accordingly, because there was no evidence that any individual would be subject to criminal prosecution due to the collision, the statute of limitations was not tolled under O.C.G.A. § 9-3-99 and the Jenkins’ claim was time-barred.

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