Diligence in Serving Parties with Suit is Required
In a recent decision by the Georgia Court of Appeals a plaintiff’s case was dismissed for failure to exercise due diligence in locating and serving a defendant. Robert Durland was in an automobile accident with Isaac Colotl. Durland attempted to serve Colotl with a copy of the complaint unsuccessfully. Durand obtained an order allowing service through publication. Durland attempted to personally serve Colotl one more occasion, but after the attempt was unsuccessful, made no more effort to find or personally serve Colotl. Durland served a copy of the complaint on his uninsured motorist carrier, USAA. Durland voluntarily dismissed his complaint and filed a renewal action five months later. USAA argued that because Colotl was never personally served in the original action, Durland was entitled to file a renewal. The trial court agreed and dismissed Durland’s complaint.
Durland appealed contending that the renewal action was de novo and therefore the trial court should not have considered the diligence in attempting to personally serve Colotl in the original action. The Court of Appeals disagreed finding that Durland never established personal jurisdiction over Colotl and, therefore, could not avail himself of a renewal action. Specifically, the Court of Appeals noted that even after obtaining permission to serve Colotl by publication, Durland was required to show that he had diligently attempted to locate and serve the action on Colotl personally. By failing to perform due diligence in locating and personally serving Colotl, the original action was not considered a “valid action” for which Durland could utilize the renewal statute. The Court of Appeals further noted that under the uninsured motorist statute, “the plaintiff shall have a continuing duty to exercise diligence in attempting to locate the owner or driver against whom the claim exists.” Therefore, “[t]he act of publication alone
is insufficient to establish proper service under OCGA § 33-7-11 (e).”
The Court of Appeals distinguished this matter from that of Robinson v. Boyd, 288 Ga. 53, 56 (2010), wherein the Georgia Supreme Court found that because a renewal action is de novo, “Untimely service of process is such an inapplicable defense.” The Court of Appeals noted that in Robinson, the plaintiff did personally serve the defendant in the original action. Because Durland failed to serve Colotl in the original action and failed to exercise due diligence, he was not entitled to renew his complaint.