Vaughn v. Collum , 136 Ga. App. 677 ( 1975 )

Stolz, Judge.

On January 2,1971, an automobile collision occurred involving plaintiff Annie K. Vaughn’s vehicle and that of defendant J. W. Collum, Jr., which was being operated by his son, D. E. Collum. The plaintiff filed suit for damages on March 28, 1972. Both defendants were served with a copy of the complaint and summons on March 30, 1972, and filed their joint answer on April 28, 1972. On December 5, 1974, the plaintiff caused a copy of the complaint and summons to be served on Federated Mutual Insurance Company. Identifying itself as a "party in interest,” Federated Mutual filed a motion to dismiss the complaint based on the statute of limitation and other defenses. The trial judge sustained Federated Mutual’s motion to dismiss, from which judgment the plaintiff appeals. Held:

The statutory law of this state relating to uninsured motorist insurance, coverage, notice, etc., is set forth in Code Ann. § 56-407.1 (Ga. L. 1963, p. 588; as amended, Ga. L. 1973, p. 487). Subsection (d) thereof provides in part: "In cases where the owner or operator of any vehicle causing injury or damages be known, and either or both be named as defendants in any action for such injury or damages, a copy of such action and all pleadings thereto shall be served as prescribed by law upon the insurance company issuing the policy as though such insurance company were actually named as a party defendant... In any case herein where service upon an insurance company is prescribed, the clerk of the court in which the action is brought shall have same accomplished by issuing a duplicate original copy for the sheriff or marshal to place his return of service in the same form and manner as prescribed by law for a party defendant.”

In Moulden Supply Co. v. Rojas, 135 Ga. App. 229 (217 SE2d 468), Brer Rabbit Mobile Homes Sales v. Perry, 132 Ga. App. 128 (207 SE2d 578), and Sims v. American Cas. Co., 131 Ga. App. 461, 481 (206 SE2d 121), this court construed Code Ann. § 81A-115 (c) (relation back of amendments) in cases involving "John Doe” or unknown defendants as allowed by Code Ann. § 81A-110 (a), where there was no service on the entity intended prior to the running of the statute of limitation, holding that the limitation plea was good unless there has been prior notice of the institution of the action or its equivalent so as to bring the case within the exception stated within Code Ann. § 81A-115 (c) and that, in the absence of such in the record, the statute of limitation plea should be sustained. However, the situation in this case, while analogous, does not present precisely the same legal issue. Nor does Code Ann. § 81A-121, which provides for parties being added or dropped by order of the court on motion of any party. Here, no motion was made to the court and no order taken allowing the addition of the uninsured motorist carrier as a party. In Humble Oil &c. Co. v. Fulcher, 128 Ga. App. 606 (1) (197 SE2d 416), the addition of a party defendant was allowed where the motion to add was filed within the limitation period, even though service was perfected one day thereafter. In McNeal v. Able, 135 Ga. App. 702 (218 SE2d 460), plaintiff sued three defendants jointly and severally on May 16, 1968, but obtained service of summons on only one defendant within the statutory period. The remaining two defendants were not served until April 24 and April 25,1974, respectively. This court reversed the trial court’s denial of the two "late served” defendants’ motion to dismiss based on the statute of limitation holding that the plaintiff was guilty of laches. The court noted that it would have been "gross error to allow the plaintiff to awaken from his long five-year sleep and suddenly come alive and secure service and relief from his inexcusable neglect after more than 5 years.” The uninsured mcitorist carrier is not a defendant as such in this litigation. Under the statute, it is entitled to notice of the pendency of the action "as though . . . named as a party defendant” (Code Ann. § 56-407.1 (d)) because of its potential liability under its insurance policy. Thus, while not actually a defendant, though it could defend the case in its own name, the uninsured motorist carrier has a strong financial interest in the litigation. As such, it is entitled to notice of the pendency of the action on the same basis as though a defendant. Notice given in the form of service of a copy of the complaint and summons almost four years after the collision and over two and one half years after the suit was served on the individual defendants, affords the uninsured motorist carrier the benefit of the bar of the statute of limitation. The trial court correctly sustained Federated Mutual’s motion to dismiss.

Argued May 21,1975 Decided September 2, 1975 Rehearing denied November 6,1975 Richard L. Powell, for appellant. William Morgan Akin, for appellees.

Judgment affirmed.

Bell, C. J., Deen, P. J., Quillian and Marshall, JJ., concur. Evans, Clark and Webb, JJ., dissent. Pannell, P. J., concurs in the result of the dissent.