SECOND DIVISION ANDREWS, P. J., MCFADDEN and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
August 13, 2014
In the Court of Appeals of Georgia A14A1077. KING v. PEEPLES et al.
MCFADDEN, Judge.
Margo King appeals pro se from the trial court’s order granting summary
judgment to Kenneth Peeples in King’s action against him for injuries she sustained
in a motor vehicle collision. She also challenges the trial court’s earlier order granting
summary judgment to her uninsured/underinsured motorist (UM) carrier, Ameriprise
Insurance Corporation; the trial court’s order permitting King’s counsel to withdraw
from representing her; and the trial court’s failure to continue the proceedings. As
detailed below, the undisputed evidence showed that the trial court did not err in
granting the motions for summary judgment filed by Ameriprise and Peeples and that
the trial court acted within his discretion in permitting counsel to withdraw and
declining to continue the proceedings. Accordingly, we affirm. 1. Facts and procedural posture.
Viewed in the light most favorable to King, the nonmovant, see Lau’s Corp.
v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), the evidence showed that King was
involved in a vehicle collision with Peeples on July 23, 2004. At that time, she had
an insurance policy with Ameriprise that included UM coverage but she did not notify
Ameriprise of the accident. On July 20, 2006, King filed a personal injury action
against Peeples in the Superior Court of Walton County. She did not serve Ameriprise
with a copy of that complaint. See OCGA § 33-7-11 (d) (setting forth requirements
for serving UM carrier with action where owner or operator of vehicle causing injury
or damage to insured is known and vehicle is believed to be uninsured). She first
notified Ameriprise of her intent to pursue UM coverage on October 28, 2011.
On January 9, 2012, King entered into a limited liability release with Peeples,
which released Peeples from “any and all” claims of King resulting from the accident,
“except to the extent other insurance coverage is available which covers the claim or
claims of [King] against [Peeples].”
On January 18, 2012, represented by new counsel, King voluntarily dismissed
her Walton County action against Peeples without prejudice. Two months later, on
March 27, 2012, she renewed her action against Peeples in the State Court of
2 Gwinnett County. See OCGA § 9-2-61 (a) (setting forth requirements for renewal
action). On August 23, 2012, she served a copy of the complaint on Ameriprise,
which answered, raised several affirmative defenses, and filed a cross-claim against
Peeples.
On March 25, 2013, Ameriprise moved for summary judgment. It argued
among other things that the doctrine of laches barred the action against it. King did
not file a response to Ameriprise’s motion, and the trial court granted the motion.
That same day, King’s counsel filed a notice of intent to withdraw from representing
her. On May 22, 2013, the trial court entered an order allowing counsel to withdraw.
On June 17, 2013, Peeples moved for summary judgment, arguing that the
limited liability release barred King’s action against him. King made several pro se
filings in response. On July 11, 2013, she wrote the trial court asking for help under
the Americans with Disabilities Act, 42 U. S. C. §§ 12101 et seq., on the ground that
she was cognitively disabled. On July 22, 2013, she filed an opposition to Peeples’s
motion for summary judgment. Finally, on July 23, 2013, she moved to set aside the
grant of summary judgment to Ameriprise and moved for a continuance while she
secured counsel.
3 On August 1, 2013, the trial court granted summary judgment to Peeples on the
ground that King already had released her claims against him. In the same order, the
trial court denied King’s motion to set aside the earlier grant of summary judgment
to Ameriprise.
2. Peeples’s motion for summary judgment.
The trial court did not err in granting Peeples’s motion for summary judgment.
The release King executed on January 9, 2012, barred her from making a claim
against Peeples for damages resulting from the accident “except to the extent other
insurance coverage is available which covers the claim or claims of [King] against
[Peeples].” Although King argues that her UM policy with Ameriprise provided such
coverage, as discussed in Division 3 below the trial court properly ruled that King
could not pursue her action against Ameriprise. King has pointed to no other facts
showing that the exception in the release applies. Accordingly, the undisputed facts
show that King’s right to pursue her claim against Peeples has been extinguished, and
the trial court did not err in granting summary judgment to Peeples. See Dodds v.
Dabbs, Hickman, Hill & Cannon, LLP, 324 Ga. App. 337, 344 (2) (750 SE2d 410)
(2013) (where release extinguished plaintiff’s cause of action, trial court did not err
in granting summary judgment to defendant on plaintiff’s claims).
4 3. Ameriprise’s motion for summary judgment.
The trial court did not err in granting Ameriprise’s motion for summary
judgment. Among other reasons, the trial court ruled in Ameriprise’s favor upon a
finding that King was “guilty of laches because she did not even attempt to serve the
summons and complaint upon Ameriprise until long after the renewal statute of
limitations had expired.”
“Under Georgia law, the general rule is that a plaintiff making a claim against
a [UM carrier] must serve process upon the [UM carrier] within the same statute of
limitation applicable to the uninsured motorist.” Lewis v. Waller, 282 Ga. App. 8, 12
(2) (637 SE2d 505) (2006) (citations omitted). This requirement is met where the UM
carrier is timely served in a renewal action despite not having been served in the
original action. See Stout v. Cincinnati Ins. Co., 269 Ga. 611, 612 (502 SE2d 226)
(1998) (construing earlier version of OCGA § 33-7-11 (d), concerning UM coverage);
see also Retention Alternatives v. Hayward, 285 Ga. 437, 439-440 (2) (678 SE2d 877)
(2009) (holding that rule set forth in Stout, supra, applies under current version of
OCGA § 33-7-11 (d)). But where a plaintiff does not perfect service of a renewal
action within the six-month renewal period established by OCGA § 9-2-61 (a), the
plaintiff has the burden of showing that she acted in a reasonable and diligent manner
5 to ensure proper service was made as quickly as possible. See McClendon v. 1152
Spring St. Assocs. &c., 225 Ga. App. 333, 336 (484 SE2d 40) (1997).
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SECOND DIVISION ANDREWS, P. J., MCFADDEN and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
August 13, 2014
In the Court of Appeals of Georgia A14A1077. KING v. PEEPLES et al.
MCFADDEN, Judge.
Margo King appeals pro se from the trial court’s order granting summary
judgment to Kenneth Peeples in King’s action against him for injuries she sustained
in a motor vehicle collision. She also challenges the trial court’s earlier order granting
summary judgment to her uninsured/underinsured motorist (UM) carrier, Ameriprise
Insurance Corporation; the trial court’s order permitting King’s counsel to withdraw
from representing her; and the trial court’s failure to continue the proceedings. As
detailed below, the undisputed evidence showed that the trial court did not err in
granting the motions for summary judgment filed by Ameriprise and Peeples and that
the trial court acted within his discretion in permitting counsel to withdraw and
declining to continue the proceedings. Accordingly, we affirm. 1. Facts and procedural posture.
Viewed in the light most favorable to King, the nonmovant, see Lau’s Corp.
v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), the evidence showed that King was
involved in a vehicle collision with Peeples on July 23, 2004. At that time, she had
an insurance policy with Ameriprise that included UM coverage but she did not notify
Ameriprise of the accident. On July 20, 2006, King filed a personal injury action
against Peeples in the Superior Court of Walton County. She did not serve Ameriprise
with a copy of that complaint. See OCGA § 33-7-11 (d) (setting forth requirements
for serving UM carrier with action where owner or operator of vehicle causing injury
or damage to insured is known and vehicle is believed to be uninsured). She first
notified Ameriprise of her intent to pursue UM coverage on October 28, 2011.
On January 9, 2012, King entered into a limited liability release with Peeples,
which released Peeples from “any and all” claims of King resulting from the accident,
“except to the extent other insurance coverage is available which covers the claim or
claims of [King] against [Peeples].”
On January 18, 2012, represented by new counsel, King voluntarily dismissed
her Walton County action against Peeples without prejudice. Two months later, on
March 27, 2012, she renewed her action against Peeples in the State Court of
2 Gwinnett County. See OCGA § 9-2-61 (a) (setting forth requirements for renewal
action). On August 23, 2012, she served a copy of the complaint on Ameriprise,
which answered, raised several affirmative defenses, and filed a cross-claim against
Peeples.
On March 25, 2013, Ameriprise moved for summary judgment. It argued
among other things that the doctrine of laches barred the action against it. King did
not file a response to Ameriprise’s motion, and the trial court granted the motion.
That same day, King’s counsel filed a notice of intent to withdraw from representing
her. On May 22, 2013, the trial court entered an order allowing counsel to withdraw.
On June 17, 2013, Peeples moved for summary judgment, arguing that the
limited liability release barred King’s action against him. King made several pro se
filings in response. On July 11, 2013, she wrote the trial court asking for help under
the Americans with Disabilities Act, 42 U. S. C. §§ 12101 et seq., on the ground that
she was cognitively disabled. On July 22, 2013, she filed an opposition to Peeples’s
motion for summary judgment. Finally, on July 23, 2013, she moved to set aside the
grant of summary judgment to Ameriprise and moved for a continuance while she
secured counsel.
3 On August 1, 2013, the trial court granted summary judgment to Peeples on the
ground that King already had released her claims against him. In the same order, the
trial court denied King’s motion to set aside the earlier grant of summary judgment
to Ameriprise.
2. Peeples’s motion for summary judgment.
The trial court did not err in granting Peeples’s motion for summary judgment.
The release King executed on January 9, 2012, barred her from making a claim
against Peeples for damages resulting from the accident “except to the extent other
insurance coverage is available which covers the claim or claims of [King] against
[Peeples].” Although King argues that her UM policy with Ameriprise provided such
coverage, as discussed in Division 3 below the trial court properly ruled that King
could not pursue her action against Ameriprise. King has pointed to no other facts
showing that the exception in the release applies. Accordingly, the undisputed facts
show that King’s right to pursue her claim against Peeples has been extinguished, and
the trial court did not err in granting summary judgment to Peeples. See Dodds v.
Dabbs, Hickman, Hill & Cannon, LLP, 324 Ga. App. 337, 344 (2) (750 SE2d 410)
(2013) (where release extinguished plaintiff’s cause of action, trial court did not err
in granting summary judgment to defendant on plaintiff’s claims).
4 3. Ameriprise’s motion for summary judgment.
The trial court did not err in granting Ameriprise’s motion for summary
judgment. Among other reasons, the trial court ruled in Ameriprise’s favor upon a
finding that King was “guilty of laches because she did not even attempt to serve the
summons and complaint upon Ameriprise until long after the renewal statute of
limitations had expired.”
“Under Georgia law, the general rule is that a plaintiff making a claim against
a [UM carrier] must serve process upon the [UM carrier] within the same statute of
limitation applicable to the uninsured motorist.” Lewis v. Waller, 282 Ga. App. 8, 12
(2) (637 SE2d 505) (2006) (citations omitted). This requirement is met where the UM
carrier is timely served in a renewal action despite not having been served in the
original action. See Stout v. Cincinnati Ins. Co., 269 Ga. 611, 612 (502 SE2d 226)
(1998) (construing earlier version of OCGA § 33-7-11 (d), concerning UM coverage);
see also Retention Alternatives v. Hayward, 285 Ga. 437, 439-440 (2) (678 SE2d 877)
(2009) (holding that rule set forth in Stout, supra, applies under current version of
OCGA § 33-7-11 (d)). But where a plaintiff does not perfect service of a renewal
action within the six-month renewal period established by OCGA § 9-2-61 (a), the
plaintiff has the burden of showing that she acted in a reasonable and diligent manner
5 to ensure proper service was made as quickly as possible. See McClendon v. 1152
Spring St. Assocs. &c., 225 Ga. App. 333, 336 (484 SE2d 40) (1997).
“The determination of whether the plaintiff is guilty of laches in failing to
exercise due diligence in perfecting service after the [expiration of the six-month
renewal period] is a matter within the trial court’s discretion and will not be disturbed
on appeal absent abuse.” Heard v. Hart, 241 Ga. App. 441, 443 (526 SE2d 908)
(1999) (citation omitted). Ameriprise presented evidence that King served it with the
complaint more than a month after the six-month renewal period expired, and that
King had made no prior attempts to perfect service. In response, King offered no
evidence to contradict these facts or to show that she had acted in a reasonable and
diligent manner to perfect service upon Ameriprise. Although she argues that there
was “an attempted service within the statute of limitations,” she points merely to
evidence of her August 29, 2012 service of the complaint in the renewal action upon
Peeples and responsive pleadings filed by Ameriprise and Peeples in the renewal
action. The trial court did not err in granting Ameriprise’s motion based on the
doctrine of laches. See Heard, 241 Ga. App. at 443.
4. Withdrawal of counsel.
6 King argues that the trial court erred in permitting her counsel to withdraw.
Uniform Superior Court Rule 4.3 (1) provides that an attorney of record who wishes
to withdraw as counsel for a party
shall submit a written request to an appropriate judge of the court for an order permitting such withdrawal. Such request shall state that the attorney has given due written notice to the affected client respecting such intention to withdraw 10 days (or such lesser time as the court may permit in any specific instance) prior to submitting the request to the court or that such withdrawal is with the client’s consent. Such request will be granted unless in the judge’s discretion to do so would delay the trial of the action or otherwise interrupt the orderly operation of the court or be manifestly unfair to the client.
Rule 4.3 also specifies the contents of the notice to be given the client and requires
the attorney to file with the court a written certification demonstrating compliance
with the notification requirements. Unif. Sup. Ct. R. 4.3 (1). (This superior court rule
is applicable in state court. See Uniform State Court Rules.) We review for abuse of
discretion a trial court’s ruling on an attorney’s request to withdraw. See Odum v.
State, 283 Ga. App. 291, 292 (641 SE2d 279) (2007).
We find no abuse of discretion in this case. Although King argues that her
attorney withdrew without informing her and without her consent, the trial court was
7 entitled to rely upon the attorney’s written certification that he had complied with the
requirements of Rule 4.3 (1). See Harbolt v. Pelletier, 291 Ga. App. 582, 583 (1) (662
SE2d 355) (2008) (physical precedent only). We are aware of no authority, and King
points to none, requiring the trial court to deny her attorney’s request to withdraw as
a means of accommodating her disability.
5. Continuance.
King argues that the trial court erred in declining to continue the proceedings
while she attempted to secure new counsel. Whether to grant a continuance is a matter
for the trial court’s discretion, even in the face of the “sudden withdrawal of retained
counsel.” Bryan v. Fed. Express Corp., 180 Ga. App. 163 (1) (348 SE2d 705) (1986)
(citation and punctuation omitted). And, as with her argument regarding the
withdrawal of counsel, King has pointed to no authority requiring the trial court to
grant her a continuance due to her disability. We find no abuse of discretion.
Judgment affirmed. Andrews, P. J., and Ray, J., concur.