Jefferson Pilot Fire & Casualty Co. v. Burger

336 S.E.2d 591, 176 Ga. App. 471, 1985 Ga. App. LEXIS 2346

Opinions

Deen, Presiding Judge.

On October 5, 1981, the appellees, Sharon and David Burger, were involved in an automobile collision with William Beavers. They commenced this negligence action against Beavers on September 22, 1982, seeking damages for personal injuries and loss of consortium. When service could not be perfected on Beavers, it was discovered that he had died on March 10, 1982. On September 22, 1983, G. Cleveland Payne was granted permanent letters of administration for Beavers’ estate. On September 27, 1983, the Burgers amended and restated their complaint to name the administrator as party defendant, and service on Payne as administrator was perfected. After discovering that Beavers had been uninsured at the time of the collision, on December 28, 1983, the Burgers served Jefferson Pilot Fire and Casualty Company (Jefferson Pilot) as an uninsured motorist carrier pursuant to OCGA § 33-7-11 (d).

Jefferson Pilot answered the complaint and asserted the defense of statute of limitations. Both Jefferson Pilot and the Burgers moved for partial summary judgment on that issue, and this appeal followed from the trial court’s grant of the Burgers’ motion and denial of Jefferson Pilot’s motion. Held:

In a tort case in which an uninsured motorist carrier is an interested party, the insurer must be served within the time allowed by law for valid service upon the defendant in the action. Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416) (1976). OCGA § 9-3-93 provides that “[t]he time between the death of a person and the commencement of representation upon his estate . . . shall not be counted against creditors of his estate, provided that such time does not exceed five years. . . .” OCGA § 9-3-98 renders OCGA § 9-3-93 applicable to tort actions. Accordingly, under the above authority, the trial court correctly found that the statute of limitations had been tolled for over 18 months (from March 10, 1982, until September 22, 1982), and that Jefferson Pilot was timely served.

Judgment affirmed.

Banke, C. J., McMurray, P. J., Pope and Benham, JJ., concur. McMurray, P. J., Carley and Pope, JJ., concur specially. Birdsong, P. J., Sognier and Beasley, JJ., dissent.