United States Fidelity & Guaranty Co. v. Reid

491 S.E.2d 50, 268 Ga. 432, 97 Fulton County D. Rep. 3678, 1997 Ga. LEXIS 634

• Court: Supreme Court of Georgia
• Decided: October 6, 1997
• Docket: S97G0257
• Status: Published

Opinions

Carley, Justice.

In order to recover damages allegedly sustained in an automobile collision in December 1991, Karen Reid filed suit in February 1993 against Spencer Lee Parker and Bobby Parker, who were insured by State Casualty Insurance Company. State Casualty was declared insolvent in January 1994. In March 1995, Ms. Reid served her uninsured motorist carrier (UMC), United States Fidelity & Guaranty Company (USF&G). Ms. Reid then voluntarily dismissed that suit and refiled the present renewal action within the six-month period contemplated by OCGA § 9-2-61. In the renewal action, USF&G moved for summary judgment, contending that the original suit was void as to it because the applicable two-year statute of limitation had expired before it was served or identified for service and, therefore, the renewal action was improper. The trial court granted summary judgment in favor of USF&G. The Court of Appeals reversed, concluding that the underlying action was merely voidable as to USF&G, not void. Reid v. U. S. Fidelity &c. Co., 223 Ga. App. 204, 205 (1) (477 SE2d 369) (1996). We granted certiorari to consider whether a suit in which a UMC is served after the running of the statute of limitation is subject to dismissal and renewal under OCGA § 9-2-61. Because we hold that a UMC may be served after the running of the statute of limitation in a valid renewal action, we affirm the judgment of the Court of Appeals.

“ ‘The “privilege” of dismissal and renewal does not apply to cases decided on their merits or to void cases, but does allow renewal if the previous action was merely voidable.’ [Cit.]” Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994). The issue is not whether the previous suit was void or merely voidable as to each entity served in the renewal suit. Instead, the issue is whether the previous suit itself was or was not “wholly void.” Cutliffe v. Pryse, 187 Ga. 51, 54 (1) (200 SE 124) (1938); United States Cas. Co. v. American Oil Co., 104 Ga. App. 209, 212 (1) (121 SE2d 328) (1961). Reid’s previous suit clearly was not “wholly void,” since service in that case was perfected and the trial court did not enter an order of dismissal. Hobbs v. Arthur, supra.

Although the previous suit was not wholly void and could, therefore, be renewed, a renewal action would be valid only if it was “substantially the same both as to the cause of action and as to the essential parties. [Cits.]” (Emphasis supplied.) Sheldon & Co. v. Emory Univ., 184 Ga. 440 (1) (191 SE 497) (1937); Patterson v. Rosser Fabrap Intl., 190 Ga. App. 657, 658 (379 SE2d 787) (1989).

The rule requiring substantial identity of essential parties has been held not to be violated: where a party in the later case is the successor trustee, or other representative, of an original party who occupied the same position as plaintiff or defendant; or where the first suit was dismissed for nonjoinder of one of the representatives of the estate, who is added as a party to the second suit; ... or where the difference is merely as to nominal or unnecessary parties. [Cits,]

Sheldon & Co. v. Emory Univ., supra at 440 (1). See also Patterson v. Rosser Fabrap Inti, supra. Indeed, where the original defendant dies, the plaintiff may voluntarily dismiss and renew the suit against the deceased’s administrator, even though the plaintiff could have substituted the deceased’s administrator as a party prior to the dismissal, but did not do so. Wofford v. Central Mut. Ins. Co., 242 Ga. 338 (249 SE2d 21) (1978). Similarly, although USF&G was a potential defendant in the previous proceeding, it never actually became a party to that case. Furthermore, Reid could not have forced USF&G to become a party to the previous suit, and USF&G is not a party, and cannot be forced to become a party, to the renewál suit. OCGA § 33-7-11 (d). Therefore, this case is distinguishable from those renewal actions “in which two distinct parties are named as defendants.” Heyde v. Xtraman, Inc., 199 Ga. App. 303, 305 (1) (404 SE2d 607) (1991). Thus, the previous suit and this renewal suit do have the requisite “substantial identity of essential parties,” and the renewal suit is, therefore, valid.

Not only is USF&G not a party to this renewal action, the requirement of service on USF&G or any UMC is entirely dependent upon the existence of a valid action against the owner or operator of any vehicle causing injury or damages. OCGA § 33-7-11 (d). Thus, this Court has consistently held that , the UMC “must be served within the time allowed for valid service on the defendant in the tort action. [Cit.]” (Emphasis supplied.) Bohannon v. J. C. Penney Cas. Ins. Co., 259 Ga. 162, 163 (377 SE2d 853) (1989); Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416) (1976). As indicated in Ga. Farm Bureau Mut. Ins. Co. v. Kilgore, 265 Ga. 836, 838 (462 SE2d 713) (1995), a plaintiff can wait to serve a UMC until he files a valid renewal suit after the running of the statute of limitation. In this valid renewal action, the Parkers were timely served, USF&G was served within the time allowed for service on the Parkers, and such service on USF&G was valid.

Moreover, it should be noted that even if a tort plaintiff does not dismiss the original suit and refile under the renewal statute, service on the UMC after expiration of the statute of limitation is not invalid as a matter of law. The pivotal case of Bohannon v. J. C. Penney Cas. Ins. Co., supra, does not bar recovery under uninsured motorist coverage in every case where the plaintiff does not serve the UMC within the statute of limitation. The plaintiff may be able to effectuate valid service on either the defendant or the UMC after expiration of the statute of limitation, and beyond the five-day “grace period” of OCGA § 9-11-4 (c), so long as the plaintiff has perfected service in a reasonable and diligent manner. See Poloney v. Tambrands, Inc., 260 Ga. 850, 852 (2) (399 SE2d 526) (1991); Peoples v. State Farm Auto. Ins. Co., 211 Ga. App. 55 (438 SE2d 167) (1993); Williams v. Colonial Ins. Co., 199 Ga. App. 760 (406 SE2d 99) (1991); Clark v. Safeway Ins. Co., 198 Ga. App. 282 (401 SE2d 72) (1991); Johnson v. Shield Ins. Co., 189 Ga. App. 333 (375 SE2d 510) (1988).

Accordingly, we hold that the trial court erroneously granted summary judgment in favor of USF&G and that the Court of Appeals correctly reversed the judgment of the trial court.

Judgment affirmed.

Benham, C. J., Sears, Hunstein, Hines, JJ, and Judge George Nunn concur. Fletcher, P. J., concurs specially. Thompson, J., not participating.