Floyd v. Piedmont Hospital, Inc.

445 S.E.2d 844, 213 Ga. App. 749, 1994 Ga. App. LEXIS 714
CourtCourt of Appeals of Georgia
DecidedJuly 1, 1994
DocketA94A0694
StatusPublished
Cited by2 cases

This text of 445 S.E.2d 844 (Floyd v. Piedmont Hospital, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Floyd v. Piedmont Hospital, Inc., 445 S.E.2d 844, 213 Ga. App. 749, 1994 Ga. App. LEXIS 714 (Ga. Ct. App. 1994).

Opinion

Smith, Judge.

Appellants Doris P. Floyd and Daniel E. Floyd brought, voluntarily dismissed, and then renewed this action against appellee Piedmont Hospital, Inc. (“Piedmont”) and Dr. Michael Goodman for medical negligence and loss of consortium. In the original action, Piedmont timely challenged the sufficiency of service in its answer. Piedmont filed a motion for summary judgment in the renewed action, asserting that the complaint against it was barred under the applicable two-year statute of limitation for medical malpractice actions. OCGA §§ 9-3-34; 9-3-71. See Perry v. Atlanta Hosp. &c. Center, 255 Ga. 431 (339 SE2d 264) (1986). The motion was granted, and the Floyds appeal.

While she was recovering from surgery, Doris Floyd suffered post-operative spinal meningitis in December 1989, but appeared to recover. However, she suffered a debilitating recurrence of the illness on January 8, 1990. The gist of the Floyds’ action is that Dr. Goodman and certain nurses at Piedmont failed to respond in a timely and appropriate manner to symptoms signaling the onset of the second bout of meningitis, which resulted in major and permanent neurological impairment.

Piedmont Hospital is located in Fulton County at 1968 Peachtree Road, N.W., Atlanta, Georgia, 30309. The original complaint was filed January 6, 1992 in the State Court of Fulton County. It disclosed that [750]*750Piedmont could be served “by service upon its registered agent for service of process, Marlena LaFavers, 4062 Peachtree Road, N.E., Atlanta, Georgia, 30319.” The latter address is in fact the location of a satellite medical care facility in DeKalb County.

On January 23, 1992, counsel for the Floyds spoke with the docket clerk and discovered that Piedmont had not been served. No problem in serving Piedmont had been indicated prior to that date. Counsel then arranged to have the complaint served by a private process server. That same day copies of the summons and complaint were delivered to Eleanor Freund at Piedmont Hospital.

Piedmont answered, raising insufficiency of service as a defense, and subsequently filed a “motion for summary judgment” on that basis.1 On June 11, 1992, the Floyds served Piedmont’s registered agent at the DeKalb County location. The Floyds voluntarily dismissed the action on July 2, 1992. A renewal action was filed pursuant to OCGA § 9-2-61 on September 29, 1992, and Piedmont was timely served.

With the benefit of hindsight, the Floyds concede that these latter efforts, based on the since disapproved view of renewal taken in Fine v. Higgins Foundry &c. Co., 201 Ga. App. 275, 276-277 (1) (b) (410 SE2d 821) (1991), did not serve to eliminate the issue of whether the statute of limitation had run in the original action. See Hobbs v. Arthur, 209 Ga. App. 855, 857-858 (2) (434 SE2d 748) (1993). Moreover, the Floyds do not suggest that the subsequent service on Piedmont’s registered agent could be considered timely as a matter of law. The question of whether the dismissal of Piedmont was proper in the renewed action turns, therefore, on whether the first attempted service in the original suit was both timely and made on a person eligible to receive service on Piedmont’s behalf.

1. We first consider whether the service relied upon was sufficient to confer upon the court jurisdiction over Piedmont, as appellants contend. “Since the object of service of process is to transmit notice of suit to the corporation, it must be made on an agent whose position is such as to afford reasonable assurance that he will inform his corporate principal that such process has been served upon him. [Cit.]” Scott v. Atlanta Dairies Cooperative, 239 Ga. 721, 724 (2) (238 SE2d 340) (1977). On the other hand, it is well settled that service of process upon a “mere employee” of the corporation does not satisfy the requirements of OCGA § 9-11-4 (d) (1). See, e.g., Northwestern Nat. Ins. Co. v. Kennesaw Transport, 168 Ga. App. 701, 702 (309 SE2d 917) (1983). This court has held that “if the employee is not an officer [751]*751or has not been expressly designated by the corporation to receive service, it is necessary that he or she occupy some position of managerial or supervisory responsibility within the organization. [Cits.]” Whatley’s Interiors v. Anderson, 176 Ga. App. 406, 407 (2) (336 SE2d 326) (1985).

“Where the evidence is conflicting with respect to the authority of an employee to receive service, the issue becomes one of fact to be resolved by the trial judge. [Cit.]” Id. The trial court expressly found no issue of material fact in the case. Strictly speaking, it therefore follows that the court made no findings of fact with respect to Freund’s authority to receive service on behalf of Piedmont. We likewise find that no issue of material fact exists with respect to the question of Freund’s authority to receive service and that the issue may be decided as a matter of law, but these findings lead us to a conclusion that does not support the trial court’s judgment.

Freund confirmed by deposition that her salary was higher than that received by some of Piedmont’s department heads. She likewise confirmed that she had been delegated a “great deal of responsibility” by past and present hospital presidents.

The evidence also shows that Piedmont is a nonprofit corporation whose sole “member” is Piedmont Medical Center, Inc. (“PMCI”). See OCGA § 14-3-140 (20). According to its articles of incorporation, PMCI was “organized exclusively for the benefit of, to perform the functions of, and to carry out the charitable, scientific and educational purposes of [Piedmont] by providing financial support, management services, educational services, long-range planning, coordination and supervision to the hospital . . . and such other acts or activities as may be requested by the hospital. . . .”

At all times relevant to this case, Freund was the corporate secretary for PMCI. As an officer of the parent corporation within the meaning of OCGA § 9-11-4 (d) (1), Freund was a proper person to receive service of process on PMCI’s behalf as a matter of law.

Finally, we note that Piedmont and PMCI occupy the same physical space, and the members of Piedmont’s Board of Trustees likewise make up the Executive Committee of the Board of Directors of PMCI.

Even assuming that Freund does not herself manage or supervise the activities of others within Piedmont, we do not find this to be dispositive of the issue under these unique facts. In Browning v. Europa Hair, 244 Ga. 222 (259 SE2d 473) (1979), the question presented was whether a corporation’s attorney could be an “agent” of the corporation to receive service. Grasping the obvious, the Supreme Court did not engage in a strained attempt to find that a corporation’s attorney was necessarily charged with managerial or supervisory responsibility. Instead, the Court observed that “not every employee of [752]

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Bluebook (online)
445 S.E.2d 844, 213 Ga. App. 749, 1994 Ga. App. LEXIS 714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/floyd-v-piedmont-hospital-inc-gactapp-1994.