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Ragan v. Mallow

The Court remanded a personal injury case to the trial court for a determination of whether the defendant acted in bad faith to avoid personal service.

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The trial court granted the defendant’s motion to dismiss this personal injury case for lack of personal jurisdiction because the defendant was never personally served, although he was served by publication. The court specifically held that service by publication alone is insufficient for the trial court to obtain personal jurisdiction, citing a recent case from this court. The plaintiff appeals, arguing that the trial court erred in dismissing her case because the defendant waived his jurisdictional and service defenses, and erred in failing to determine whether she diligently attempted service and whether the defendant avoided service in bad faith. While we hold that the defendant did not waive his defenses, we hereby overrule prior cases holding incorrectly that service by publication can never confer personal jurisdiction, vacate the order of dismissal, and remand for further proceedings.

Plaintiff Heather Ragan filed suit against defendant Derek J. Mallow on May 27, 2010, alleging that he was liable for injuries she received in a car wreck on June 24, 2008. She served her uninsured motorist carrier and Mallow’s insurer, but an attempt to serve the defendant on June 2, 2010 at the address listed for him on the police report was unsuccessful. On June 28, 2010, the defendant answered the complaint, raising the affirmative defenses of insufficient service, lack of personal jurisdiction, and the running of the statute of limitations. He also filed a separate notice of his intention to offer into evidence at trial the plaintiff’s medical reports in narrative form under OCGA § 24-3-18.1

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