Walker v. Auto-Owners Insurance

Court of Appeals of Georgia

Walker v. Auto-Owners Insurance

583 S.E.2d 215, 261 Ga. App. 538, 2003 Fulton County D. Rep. 1763, 2003 Ga. App. LEXIS 695

CourtCourt of Appeals of Georgia

DecidedJune 5, 2003

DocketA03A1246

StatusPublished

This text of 583 S.E.2d 215 (Walker v. Auto-Owners Insurance) 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

Walker v. Auto-Owners Insurance, 583 S.E.2d 215, 261 Ga. App. 538, 2003 Fulton County D. Rep. 1763, 2003 Ga. App. LEXIS 695 (Ga. Ct. App. 2003).

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Opinion

Phipps, Judge.

The trial court found insufficient service of process in Bertha Walker’s complaint against Auto-Owners Insurance Company and dismissed it without prejudice. She appeals, but because service was not made in accordance with OCGA § 9-11-4, we affirm.

1. Auto-Owners has moved to dismiss the appeal because Walker’s brief was untimely and did not meet the requirements of the Rules of the Court of Appeals. We exercise our discretion to consider the merits of her appeal despite her violation of our rules¹ and deny Auto-Owners’s motion.

2. Walker filed her complaint, pro se, on April 30, 2002. Auto-Owners answered and counterclaimed on August 26, asserting the [539]*539defense of insufficient service of process. Walker filed an “objection,” claiming that Auto-Owners had been properly served and that she was entitled to a default judgment against it. Auto-Owners then moved to dismiss the complaint for insufficient service of process, and the court granted its motion.

Decided June 5, 2003. Bertha Walker, pro s'e. Alexander & Vann, William C. Sanders, for appellee.

Walker claims that she properly served Auto-Owners under OCGA § 9-11-5 (b) by mailing a copy of the summons and complaint to its attorney. But OCGA § 9-11-5 (b) pertains to service of pleadings after the original complaint; it does not allow a complaint to be served on the defendant’s attorney.² Apparently referring to a previous lawsuit that she had filed against Auto-Owners, Walker argues that her complaint was “not the first filing for this case.” But Walker’s previous lawsuit does not change the fact that her complaint was the first filing in this case and had to be served in accordance with OCGA § 9-11-4. Because Walker failed to properly serve Auto-Owners under OCGA § 9-11-4, the trial court did not err by dismissing her complaint.

Judgment affirmed.

Blackburn, P. J., and Ellington, J., concur.

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Phipps, Judge.

The trial court found insufficient service of process in Bertha Walker’s complaint against Auto-Owners Insurance Company and dismissed it without prejudice. She appeals, but because service was not made in accordance with OCGA § 9-11-4, we affirm.

1. Auto-Owners has moved to dismiss the appeal because Walker’s brief was untimely and did not meet the requirements of the Rules of the Court of Appeals. We exercise our discretion to consider the merits of her appeal despite her violation of our rules¹ and deny Auto-Owners’s motion.

2. Walker filed her complaint, pro se, on April 30, 2002. Auto-Owners answered and counterclaimed on August 26, asserting the [539]*539defense of insufficient service of process. Walker filed an “objection,” claiming that Auto-Owners had been properly served and that she was entitled to a default judgment against it. Auto-Owners then moved to dismiss the complaint for insufficient service of process, and the court granted its motion.

Decided June 5, 2003. Bertha Walker, pro s'e. Alexander & Vann, William C. Sanders, for appellee.

Walker claims that she properly served Auto-Owners under OCGA § 9-11-5 (b) by mailing a copy of the summons and complaint to its attorney. But OCGA § 9-11-5 (b) pertains to service of pleadings after the original complaint; it does not allow a complaint to be served on the defendant’s attorney.² Apparently referring to a previous lawsuit that she had filed against Auto-Owners, Walker argues that her complaint was “not the first filing for this case.” But Walker’s previous lawsuit does not change the fact that her complaint was the first filing in this case and had to be served in accordance with OCGA § 9-11-4. Because Walker failed to properly serve Auto-Owners under OCGA § 9-11-4, the trial court did not err by dismissing her complaint.

Judgment affirmed.

Blackburn, P. J., and Ellington, J., concur.

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Bluebook (online)

583 S.E.2d 215, 261 Ga. App. 538, 2003 Fulton County D. Rep. 1763, 2003 Ga. App. LEXIS 695, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-auto-owners-insurance-gactapp-2003.

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