Wilkerson v. Voyager Casualty Insurance

321 S.E.2d 346, 171 Ga. App. 834, 1984 Ga. App. LEXIS 2346

• Court: Court of Appeals of Georgia
• Decided: June 28, 1984
• Docket: 67894
• Status: Published

Opinions

Carley, Judge.

Appellant filed the instant lawsuit against appellee in an effort to recover certain insurance benefits. Appellee failed to file an answer or to appear for trial, and appellant obtained a default judgment. Thereafter, appellee moved to have the default judgment set aside. The motion was granted on the ground that appellee had never been legally served with process. Appellant appeals.

1. Appellee’s motion to dismiss the appeal as premature is denied. See Hilton v. Maddox, Bishop, Hayton Frame &c. Contractors, 125 Ga. App. 423 (188 SE2d 167) (1972); Bigley v. Lawrence, 149 Ga. App. 249 (253 SE2d 870) (1979).

2. Appellant enumerates as error the granting of the motion to set aside the default judgment. Appellant contends that service of process in the instant case was legally sufficient. We note at the outset that, if there was no valid service of process, it is immaterial whether appellee had actual notice of the pendency of the action. KMM Indus. v. Professional Placement Assn., 164 Ga. App. 475 (297 SE2d 512) (1982); Holloway v. Frey, 130 Ga. App. 224 (202 SE2d 845) (1973).

Appellee is a foreign insurer doing business in Georgia. In the course of instituting this action against appellee, appellant’s counsel telephoned the Insurance Department and was informed that one Beatty was appellee’s designated agent for service of process in this state. However, Beatty refused to accept such service on the ground that he was not appellee’s designated agent. Appellant was duly notified of that fact. Thereafter, appellant mailed a copy of the lawsuit to the Insurance Commissioner. See OCGA § 33-4-4. A copy of the complaint was received by the Insurance Department, but no acknowledgment of service was executed.

OCGA § 33-4-3 (2) provides that service of process shall be made upon the Insurance Commissioner only when service cannot be made upon a foreign insurer’s designated agent. Appellant contends that Beatty’s refusal to accept service was a sufficient showing that appellee’s designated agent could not be served, so as to justify service upon the Insurance Commissioner. However, there was no evidence that, after Beatty refused service, appellant made any further inquiry or effort to ascertain the identity of appellee’s designated agent. Thus, there was no showing that service could not be made upon the proper agent. See generally Jarmon v. Murphy, 164 Ga. App. 763 (298 SE2d 510) (1982).

Moreover, even if service of process upon the Insurance Commissioner was appropriate under the circumstances, such service was not properly perfected. Attempted service of an initial pleading by mail is legally insufficient. See generally KMM Indus. v. Professional Placement Assn., supra; Henry v. Hiwassee Land Co., 246 Ga. 87 (269 SE2d 2) (1980). Appellant maintains that service by mail was proper in the instant case, because the Insurance Commissioner “agreed to accept” service in this manner. However, no acknowledgment of service was executed. A receipt for $2 which was received by the Insurance Department from the law firm of appellant’s counsel is insufficient to constitute an acknowledgment of service of process. There is no notation on the receipt to signify that the money was accepted with regard to service of process or that it was received in relation to the case at bar.

Appellant contends that OCGA § 33-4-4 (a) does not require formal service, as opposed to service by mail, upon the Insurance Commissioner. That statute provides in pertinent part: “[A] foreign or alien insurer may be served with legal process by service of duplicate copies of the legal process on the agent for service designated under Code Section 33-4-3 or upon the Commissioner.” (Emphasis supplied.) It is clear that the purpose of the statute is to specify an alternative recipient of legal process, and not an alternative manner of service. There is nothing whatsoever to suggest that service upon the Commissioner may be “informal.” To thé contrary, the language of the statute indicates that service upon the Commissioner must be perfected in a manner which would be proper if service were made upon a designated agent for service of process. The rules governing service of process are strictly construed, “and rightfully so, since notice is the very bedrock of due process.” Thompson v. Lagerquist, 232 Ga. 75, 76 (205 SE2d 267) (1974). See also Headrick v. Fordham, 154 Ga. App. 415 (268 SE2d 753) (1980). Since the record reveals neither an acknowledgment of service nor a return of service, there is no basis for a finding that process was legally served upon the Insurance Commissioner. See generally Greene v. First Lease, Inc., 152 Ga. App. 605 (263 SE2d 483) (1979).

In summary, the record in the instant case does not establish that service was perfected upon appellee or upon anyone else on behalf of appellee. Accordingly, the decision of the trial court to set aside the judgment was correct.

Decided June 28, 1984 Rehearing denied July 31, 1984 Kenneth M. Henson, Jr., Millard D. Fuller, for appellant. Kenneth B. Hodges, Jr., William A. Erwin, for appellee.

3. Appellant’s remaining enumerations of error concern the admissibility of certain matter contained in affidavits submitted in connection with the motion to set aside the judgment. These affidavits have no effect on the record insofar as it reflects the lack of valid service of process upon appellee, and they have formed no part of our consideration on appeal. Thus, enumerations of error founded upon the affidavits need not be considered.

Judgment affirmed.

Banke, P. J., Birdsong, Sognier, and Ben-ham, JJ., concur. McMurray, C. J., Quillian, P. J., Deen, P. J., and Pope, J., dissent.