State Farm Mutual Automobile Insurance v. Noble

430 S.E.2d 804, 208 Ga. App. 518, 93 Fulton County D. Rep. 1518, 1993 Ga. App. LEXIS 582

Opinions

Cooper, Judge.

Appellee was injured in an automobile accident allegedly caused by the negligence of Vaccaro, an uninsured motorist. Appellee sued Vaccaro and served appellant, her uninsured motorist carrier, with a copy of the action as required by OCGA § 33-7-11 (d). Appellant answered in its own name, but Vaccaro left the state and was never personally served. After filing an affidavit showing her due diligence in attempting personal service on Vaccaro, appellee obtained an order from the court allowing service by publication. See OCGA § 33-7-11 (e). Vaccaro, by special appearance, moved to dismiss the action against him for lack of jurisdiction, alleging that the service by publication was untimely and insufficient to convey jurisdiction. The trial court denied this motion, holding that appellee’s service by publication was timely and sufficient but conceding that it was without jurisdiction to enter an in personam judgment against Vaccaro. Vaccaro then filed the same motion again. This time the trial court reached the same conclusions with respect to timeliness and jurisdiction but dismissed Vaccaro on the ground that appellant was the proper defendant to the action because it answered the complaint in its own name. Appellant then moved for summary judgment on the grounds that- a judgment against Vaccaro is a condition precedent to a judgment against appellant. The trial court denied the motion, and we granted appellant’s application for interlocutory appeal to consider whether summary judgment should have been granted to appellant after Vaccaro was dismissed from the action.

“ ‘This court has interpreted the Uninsured Motorist Act to require, as a condition precedent to a suit against the insurance carrier, that the insured first sue and recover a judgment against the uninsured motorist, whether known, or unknown.’ (Cit.)” Boles v. Hamrick, 194 Ga. App. 595 (391 SE2d 418) (1990). Until 1972, if for any reason a known uninsured motorist could not be personally served, the condition precedent could not be met and the insured could not recover from his uninsured motorist carrier. The Legislature then amended the statute to allow service on the known uninsured motorist by publication upon a showing of due diligence on the part of the insured. See OCGA § 33-7-11 (e). Although service by publication would not provide the court with jurisdiction to enter an in personam judgment against the uninsured motorist, it would allow the court to enter a “nominal judgment”¹ against the uninsured motorist sufficient to satisfy the condition precedent. See Cotton States &c. Ins. Co. v. Bogan, 194 Ga. App. 824, 825 (392 SE2d 33) (1990); Chitwood v. Southern Gen. Ins. Co., 189 Ga. App. 697, 703 (377 SE2d 210) (1988) (Sognier, J., concurring specially); Norman v. Daniels, 142 Ga. App. 456 (236 SE2d 121) (1977). It must be noted that the amendment did not eliminate the need to meet the condition precedent of a judgment against the uninsured' motorist; it simply provided the means by which the condition precedent could be met. Moreover, despite appellee’s assertions to the contrary, the uninsured motorist carrier’s filing of pleadings in its own name also does not eliminate the requirement that a judgment be obtained against the uninsured motorist. Boles, supra at 596. See also Bogan, supra at 825; Jones v. Cotton States Mut. Ins. Co., 185 Ga. App. 66 (1b) (363 SE2d 303) (1987).

In this case, appellee properly exercised due diligence and served the uninsured motorist by publication. However, before, she could recover a judgment against him, the trial court dismissed him. Service by publication, though a necessary first step in cases of this sort, does not itself satisfy the condition precedent of a judgment against the uninsured motorist. We rejected the argument that actually obtaining a nominal judgment against the uninsured motorist after service by publication was unnecessary in Smith v. Phillips, 172 Ga. App. 459 (1) (323 SE2d 669) (1984). In Smith we stated that “[i]nasmuch as the statutory/judicial scheme which has evolved requires a determination of the uninsured motorist’s tort liability before a UMC can be held accountable on its contractual obligation to its insured, we cannot agree . . . that entry of judgment against the tortfeasor/uninsured motorist is a meaningless step.” Id. at 460. As the condition precedent to a judgment against appellant could not be fulfilled once the uninsured motorist in this case was dismissed, it was error to deny appellant’s motion for summary judgment. Boles, supra.

Appellee argues that, unlike the dismissal in Boles, the trial court’s dismissal of the uninsured motorist in this case was explicitly not based on the merits. Citing Wilkinson v. Vigilant Ins. Co., 236 Ga. 456, 457 (224 SE2d 167) (1976), appellee contends that she should be allowed to proceed to judgment against her uninsured motorist carrier in this action “as though it were a John Doe action,” without obtaining a judgment against the uninsured motorist, as long as the reason she cannot obtain a judgment ¿gainst the uninsured motorist — the trial court’s dismissal of him as a party — was not based on the merits of her claim against him. We first note that even in a John Doe action the insured cannot proceed against the uninsured motorist carrier directly. See, e.g., Bogan, supra at 825. Like service on the uninsured by publication pursuant to OCGA § 33-7-11 (e), a John Doe action pursuant to OCGA § 33-7-11 (d) is a procedural device designed to allow the insured to fulfill the condition precedent of a judgment against the uninsured motorist, not a means of avoiding or abrogating it. Moreover, if we accept appellee’s suggested rule that an insured be able to proceed directly against the carrier (or even that he be able to bring á John Doe action) whenever he could not proceed to judgment against a known uninsured motorist for reasons unrelated to the merits of the claim, there would be no need for service by publication as provided in OCGA § 33-7-11 (e), and that statutory provision would be rendered meaningless. For whenever a known uninsured motorist could not be located or served, the insured would be unable to obtain a judgment against him for reasons unrelated to the merits of the claim, and the insured could simply proceed against the carrier (or sue John Doe). Rather, the rule exemplified by Wilkinson is that the condition precedent of a judgment against a known uninsured motorist must be met “unless there is some legal bar to liability on the part of the known uninsured motorist unrelated to the facts of the collision. See Wilkinson, supra (discharge in bankruptcy as legal bar to liability of known uninsured motorist under Bankruptcy Code); Watkins v. United States, 462 FSupp. 980, 990-991 (S.D. Ga. 1977) (status as driver for federal government as legal bar to liability of known uninsured motorist under Federal Driver’s Act), aff’d 587 F2d 279 (5th Cir. 1979).” (Emphasis supplied.) State Farm &c. Ins. Co. v. Harris, 207 Ga. App. 8, 10 (427 SE2d 1) (1992). In other words, an insured must obtain at least a nominal judgment against a known uninsured motorist unless even a nominal judgment against him is barred by some immunity from suit such as bankruptcy; and where even a nominal judgment is barred, the insured cannot proceed directly against the carrier but must utilize the procedural device of a John Doe action. We agree with the dissent that the legislature did not intend for insurers to escape liability where a known insured cannot be personally served. However, we cannot ignore that the legislature provided a specific procedure for plaintiffs and courts to follow in order to establish insurer liability under such circumstances; and it is that procedure which must be utilized. In this case, the trial court’s dismissal of the uninsured motorist on the grounds that the uninsured motorist carrier was the proper party, regardless of whether it was a dismissal on the merits, was not based on an immunity or “legal bar to liability” on the part of the uninsured motorist. Furthermore, the dismissal of Vaccaro left not a John Doe action, but an action directly against the carrier as the sole defendant. Accordingly, the trial court erred in relying on Wilkinson to deny appellant’s motion for summary judgment.

If appellee is unable to obtain a judgment against Vaccaro because Vaccaro has been dismissed, a judgment against appellant is precluded and its motion for summary judgment must be granted. However, because the order dismissing Vaccaro adjudicated “the rights and liabilities of fewer than all the parties” and the trial court did not expressly direct the entry of a final judgment in favor of Vaccaro, that dismissal order did not terminate the action as to Vaccaro and is subject to revision by the trial court at any time before final judgment or appeal to this court after final judgment. See OCGA § 9-11-54 (b). Thus, we vacate rather than reverse the judgment below and remand the case in order to allow the trial court, upon appropriate motion of appellee, to reconsider its dismissal of Vaccaro in light of this opinion.

Judgment vacated and case remanded for further proceedings not inconsistent with this opinion.

Birdsong, P. J., Beasley, P. J., Andrews and Johnson, JJ., concur. Pope, C. J., and Blackburn, J., dissent. McMurray, P. J., disqualified.

Footnotes

1

Such a judgment is nominal in the sense that it is not an in personam judgment against the tortfeasor; “the sole purpose of the ‘judgment’ is to fulfill the condition precedent in OCGA § 33-7-11. [Cits.]” Chitwood v. Southern Gen. Ins. Co., 189 Ga. App. 697, 703 (377 SE2d 210) (1988) (Sognier, J., concurring specially).