O'Hara v. Gilmore

The plaintiff was barred from pursuing a derivative injury suit against the defendants for the alleged negligence of their daughter in light of the dismissal of the plaintiff's underlying action against the daughter due to lack of service and personal jurisdiction.

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Theresa Gilmore filed the underlying complaint against Robert and Sherrie O’Hara the “O’Haras” and their daughter, Caitlin, seeking damages for injuries sustained in an automobile accident. Gilmore alleged that Caitlin was liable for the accident under a theory of simple negligence and that the O’Haras were liable under a theory of derivative liability pursuant to the family purpose doctrine. Caitlin filed a special appearance, answer, and motion to dismiss on the grounds of insufficiency of process and the expiration of the statute of limitation. The O’Haras contemporaneously moved for summary judgment, contending that Gilmore’s inability to obtain a judgment against Caitlin foreclosed a derivative claim against the O’Haras for vicarious liability under the family purpose doctrine. The trial court thereafter granted Caitlin’s motion and dismissed her from the lawsuit with prejudice for lack of service and personal jurisdiction pursuant to OCGA § § 9-11-12 b 2, 4 and 5. Given its dismissal of Caitlin, the trial court concluded that it could not rule on the issue of whether the running of the statute of limitation barred the underlying action. Consequently, the trial court denied the O’Haras’ summary judgment motion. We granted the O’Haras’ application for interlocutory review from the trial court’s denial of such motion. The O’Haras now appeal, contending that in light of Caitlin’s dismissal, derivative liability against them was precluded. We agree and reverse the trial court’s decision.

“On appeal from the grant or denial of summary judgment, we conduct a de novo review, construing the evidence and all reasonable inferences most favorably to the nonmoving party.” Citations and punctuation omitted. Hall v. Hall , 303 Ga. App. 434 693 SE2d 624 2010.

O'Hara v. Gilmore

The plaintiff was barred from pursuing a derivative injury suit against the defendants for the alleged negligence of their daughter in light of the dismissal of the plaintiff's underlying action against the daughter due to lack of service and personal jurisdiction.

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