Bohannon v. JC Penney Casualty Insurance Company

Supreme Court of Georgia

Bohannon v. JC Penney Casualty Insurance Company

377 S.E.2d 853, 259 Ga. 162, 1989 Ga. LEXIS 146

CourtSupreme Court of Georgia

DecidedApril 6, 1989

Docket46498

StatusPublished

Cited by40 cases

This text of 377 S.E.2d 853 (Bohannon v. JC Penney Casualty Insurance Company) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bohannon v. JC Penney Casualty Insurance Company, 377 S.E.2d 853, 259 Ga. 162, 1989 Ga. LEXIS 146 (Ga. 1989).

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Opinions

Clarke, Presiding Justice.

In 1985, Katherine Wilson was driving and Suzanne Bohannon was a passenger when they were hit by a truck. They filed suits against the truck driver and his employer. In 1987, it was determined that the employer was not liable because the truck driver was not [163]*163acting within the scope of his employment. See Aubrey Silvey Enterprises v. Bohannon, 182 Ga. App. 738 (356 SE2d 693) (1987). Wilson and Bohannon then sought to recover under their uninsured motorist coverage. The trial court granted summary judgment motions in favor of the insurance companies because service of process was not accomplished within the two-year statute of limitation period. The Court of Appeals affirmed in part and reversed in part. See Bohannon v. Futrell, 189 Ga. App. 340 (375 SE2d 637) (1988). We affirm.

In this appeal Bohannon and Wilson argue that the truck driver was not an uninsured motorist within the meaning of OCGA § 33-7-11 (b) (1) (D) (iii) until the Court of Appeals eventually held that he was not within the scope of his employment and was not covered under his employer’s policy. They assert that the statute of limitation on the claim under the uninsured motorist act should run from the date that it is legally determined that the negligent motorist is uninsured. This argument is an engaging one. However, we have previously held that the uninsured motorist carrier must be served within the time allowed for valid service on the defendant in the tort action. Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416) (1976). It would be possible to formulate an exception for cases where the negligent motorist’s insurance carrier defends the suit and it is later determined that coverage does not apply. Such a rule might allow a plaintiff to serve process within a reasonable time after it is legally determined that the negligent motorist is uninsured. But, fashioning such a rule is a task that is better left to the legislature. We therefore affirm the decision of the Court of Appeals.

Judgment affirmed.

All the Justices concur, except Smith and Weltner, JJ., who dissent, and Bell, J., who concurs in the judgment only.

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Clarke, Presiding Justice.

In 1985, Katherine Wilson was driving and Suzanne Bohannon was a passenger when they were hit by a truck. They filed suits against the truck driver and his employer. In 1987, it was determined that the employer was not liable because the truck driver was not [163]*163acting within the scope of his employment. See Aubrey Silvey Enterprises v. Bohannon, 182 Ga. App. 738 (356 SE2d 693) (1987). Wilson and Bohannon then sought to recover under their uninsured motorist coverage. The trial court granted summary judgment motions in favor of the insurance companies because service of process was not accomplished within the two-year statute of limitation period. The Court of Appeals affirmed in part and reversed in part. See Bohannon v. Futrell, 189 Ga. App. 340 (375 SE2d 637) (1988). We affirm.

In this appeal Bohannon and Wilson argue that the truck driver was not an uninsured motorist within the meaning of OCGA § 33-7-11 (b) (1) (D) (iii) until the Court of Appeals eventually held that he was not within the scope of his employment and was not covered under his employer’s policy. They assert that the statute of limitation on the claim under the uninsured motorist act should run from the date that it is legally determined that the negligent motorist is uninsured. This argument is an engaging one. However, we have previously held that the uninsured motorist carrier must be served within the time allowed for valid service on the defendant in the tort action. Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416) (1976). It would be possible to formulate an exception for cases where the negligent motorist’s insurance carrier defends the suit and it is later determined that coverage does not apply. Such a rule might allow a plaintiff to serve process within a reasonable time after it is legally determined that the negligent motorist is uninsured. But, fashioning such a rule is a task that is better left to the legislature. We therefore affirm the decision of the Court of Appeals.

Judgment affirmed.

All the Justices concur, except Smith and Weltner, JJ., who dissent, and Bell, J., who concurs in the judgment only.

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377 S.E.2d 853, 259 Ga. 162, 1989 Ga. LEXIS 146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bohannon-v-jc-penney-casualty-insurance-company-ga-1989.

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