Wilson v. State Farm Mutual Automobile Insurance , 239 Ga. App. 168 ( 1999 )

Eldridge, Judge.

Diane Wilson sued Sonia Strong, an uninsured motorist, for injuries allegedly sustained in a motor vehicle collision. Wilson timely served a copy of the complaint on her uninsured motorist carrier, State Farm Mutual Automobile Insurance Company (“State Farm”), but was never able to perfect personal service on Strong, because Strong was avoiding service. Wilson obtained a court order after a showing of diligence and of concealment to avoid service, allowing service by publication. State Farm answered in its own name and moved to set aside the order for service by publication and to dismiss the lawsuit on the grounds that Wilson had not acted diligently in attempting to personally serve Strong. Another trial court judge granted the motions vacating the order of publication and dismissing the case for lack of diligence in personally serving Strong. Wilson appeals.

The collision between Wilson and Strong occurred on December 8, 1994. On December 6, 1996, Wilson filed her complaint. On December 10, 1996, the marshal’s office issued its entry of service, notifying Wilson that service had not been perfected on Strong, because she did not live at the Atlanta, Fulton County service address in the complaint. The record shows that Wilson hired a private investigator to locate Strong and that the investigation revealed that Strong resided at 781 Heritage Oaks Drive, Stone Mountain, DeKalb County, where she received her AFDC checks and other correspondence. Deputy Marshall H. King, State Court of DeKalb County, between January 1, 1997 and March 13, 1997, made numerous attempts to serve Strong or have her contact him with no success according to the affidavit of Wilson’s lawyer. On March 18, 1997, the private investigator was appointed as a special process server and attempted service unsuccessfully on March 18, March 19, and twice on March 20, 1997. On March 22, 1997, the investigator-process server returned to serve Strong and encountered a uniformed Fulton County Deputy Sheriff, who told him that the deputy was there for an expected visit with Strong’s mother and that Strong lived there. They went to the door together, but no one would come to the door, even though the deputy was expected. On May 8,1997, the investigator-process server gave an affidavit that set out all of his attempts to personally serve Strong and that, in his opinion, she was deliberately concealing herself to avoid service. On May 16, 1997, Wilson moved for an order for service by publication, showing the exercise of diligence to personally serve Strong and that she was hiding to avoid service. On May 16, 1997, the order for publication was granted.

Wilson’s sole enumeration of error was that the trial court erred in granting State Farm’s motion to set aside the order for publication and dismissing the case. We agree.

The trial court’s ruling was contrary to OCGA § 33-7-11 (e), which expressly authorizes service by publication upon known uninsured motorists who leave the state, cannot be served, or hide to avoid service. The trial court committed plain legal error in setting aside the order for service by publication and dismissing the case as to both the uninsured motorist Strong and the uninsured motorist carrier State Farm, because the trial court applied the wrong legal standard of diligence for service by publication for purposes of obtaining a nominal judgment to satisfy the condition precedent for the uninsured motorist statute and for the insurer to be liable under the statute. OCGA § 33-7-11 (e).

Service by publication is necessary on a known but unlocatable uninsured motorist to satisfy the condition precedent of a nominal judgment under OCGA § 33-7-11 (d) before the uninsured motorist carrier may be liable under the insured’s contract and the uninsured motorist statute. Smith v. Commercial Union Assur. Co., 246 Ga. 50, 51-52 (268 SE2d 632) (1980); Wentworth v. Fireman’s &c. Ins. Cos., 147 Ga. App. 854, 855 (250 SE2d 543) (1978); Norman v. Daniels, 142 Ga. App. 456 (236 SE2d 121) (1977). The nominal judgment is subject to collateral attack by the uninsured motorist at any time, because he or she has never been personally served. Norman, supra at 458. However, such nominal judgment is sufficient for the insured to satisfy the judgment from the uninsured motorist provisions of the insurer’s liability policy.

OCGA § 33-7-11 (e)

“permitting service by publication does not require a showing that service has been attempted but only that the party to be served ‘has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the service of summons. . . .’ OCGA § 9-11-4 (e) (1) (A). Moreover, by granting the order permitting service by publication the trial court, in effect, made a finding of due diligence. See Starr v. Wimbush, 201 Ga. App. 280 (2) (410 SE2d 776) (1991).”

Douglas v. Woon, 205 Ga. App. 355, 356 (1) (422 SE2d 61) (1992). Accord Bailey v. Lawrence, 235 Ga. App. 73, 76 (2) (508 SE2d 450) (1998); General Accident Ins. Co. v. Straws, 220 Ga. App. 496, 497 (1) (472 SE2d 312) (1996); Kannady v. State Farm &c. Ins. Co., 214 Ga. App. 492, 494-495 (4) (448 SE2d 374) (1994).

In this case, for purposes of setting aside the service by publication, the trial court looked to the record of the attempts to diligently serve Strong as soon as possible for personal jurisdiction, which standard applies to the relation back of service made after the running of the statute of limitation and mistakenly relied upon cases under such legal standard; however, Strong was never personally served so there was no service to relate back to the time of filing the action prior to the statute of limitation attaching and no personal jurisdiction for purposes of an enforceable personal judgment. Therefore, such cases on laches for relation back have no application to this case, because they deal with service for personal jurisdiction and not with obtaining a nominal judgment after service by publication as to the uninsured motorist carrier only. See Ga. Farm &c. Ins. Co. v. Kil-gore, 265 Ga. 836 (462 SE2d 713) (1995); Winters v. Goins, 235 Ga. App. 558, 560 (2) (509 SE2d 361) (1998); Wade v. Whalen, 232 Ga. App. 765 (1) (504 SE2d 456) (1998). Since Strong was an uninsured motorist who could not be located with due diligence, then the correct legal standard for due diligence for service by publication under OCGA § 33-7-11 (e) was diligence in determining that Strong was either out of state or avoiding service and not the standard of diligence for relation back of personal service obtained after the statute of limitation has run and the plaintiff seeks to have dilatory service relate back to the time of filing. See Douglas, supra at 356. See also Bailey, supra at 76-78 (2). Thus, the wrong standard of diligence was used by the trial court.

The record shows substantial, repeated, and prolonged efforts not only to locate Strong but also to serve her as soon as possible; a finding of due diligence under OCGA § 33-7-11 (e) was mandated under the facts of this case. Wentworth, supra at 855. Such evidence demonstrated due diligence in determining that Strong was avoiding service within the meaning of OCGA § 33-7-11 (e). The first trial court judge believed that due diligence had been demonstrated and issued the order for service by publication.

“ ‘Even though service by publication is insufficient to confer in personam jurisdiction over defendant, by granting the order permitting service by publication the trial court, in effect, made a finding of due diligence. Thus, as of the date of the order granting the request for service by publication, the trial court found the plaintiff had been diligent in the attempt to locate defendant.’ (Citations and punctuation omitted.) Smith v. Johnson, 209 Ga. App. 305, 306 (433 SE2d 404) (1993).”

Winters, supra at 560 (2). The vacating of the order of publication by the second judge, based upon the application of the wrong legal standard of diligence and without evidence to support such action or legal basis, demonstrated arbitrary and capricious conduct in the exercise of his discretion by the trial court. Norman, supra at 460-461.

Thus, the wrong legal standard for diligence was used to vacate the order of publication and to grant dismissal. See Douglas, supra at 356. When the trial court exercised its discretion under a mistaken standard of law, this constituted plain legal error. See Glover v. Ware, 236 Ga. App. 40, 45 (3) (510 SE2d 895) (1999). If a trial court exercises its sound discretion under a mistaken legal standard, then the court is deprived of discretion by the mistake of law. Therefore, the legally flawed exercise of discretion is the same as refusal to exercise any discretion, which is a manifest abuse of discretion. See generally Flanagan v. State, 218 Ga. App. 598, 600-601 (462 SE2d 469) (1995); Jones v. State, 208 Ga. App. 472, 473 (431 SE2d 136) (1993); Cotting-ham v. State, 206 Ga. App. 197,199 (3) (424 SE2d 794) (1992). Under either standard of review, the trial court’s setting aside of the order of publication and the dismissal of the case must be reversed.

It is true that because [Strong] has not been personally served, in personam jurisdiction may not be obtained against [Strong] and therefore no judgment may be recovered from [her] personally or [her insurer, if she had one]. See Smith v. Commercial Union Assur. Co., 246 Ga. 50 (268 SE2d 632) (1980). Nevertheless, a judgment against [Strong] may be recovered from plaintiffs’ uninsured motorist insurer because [she] is, in essence, an uninsured motorist. Id. See also Bell v. Bennett, 189 Ga. App. 423 (375 SE2d 884) (1988); Wentworth v. Fireman’s Fund &c. Cos., [supra]; Norman v. Daniels, [supra].

Douglas, supra at 356.

Judgment reversed.

Johnson, C. J., Blackburn, P. J., Barnes and Ellington, JJ, concur. Pope, P. J., and Smith, J., dissent.