Jami Backensto and Robert B. Backensto sued the Georgia Department of Transportation for damages arising out of an October 24, 2000 collision between their vehicle and a road sign. The Department moved to dismiss the complaint on the grounds that the Backenstos did not comply with OCGA § 50-21-35 because they failed to mail a copy of the complaint to the attorney general and attach a certificate to the complaint certifying that the mailing to the attorney general had occurred. The trial court granted the motion to dismiss, and the Backenstos appeal. For the reasons set forth below, we reverse and remand this case to the trial court with direction. OCGA § 50-21-35 provides: In all civil actions brought against the state under this article, to perfect service of process the plaintiff must both: 1 cause process to be served upon the chief executive officer of the state government entity involved at his or her usual office address; and 2 cause process to be served upon the director of the Risk Management Division of the Department of Administrative Services at his or her usual office address. The time for the state to file an answer shall not begin to run until process has been served upon all required persons. A copy of the complaint, showing the date of filing, shall also be mailed to the Attorney General at his or her usual office address, by certified mail or statutory overnight delivery, return receipt requested and there shall be attached to the complaint a certificate that this requirement has been met. The record shows that the Backenstos filed their complaint on October 17, 2002, but did not mail a copy to the attorney general until December 2, 2002. That date was 39 days after the statute of limitation period expired on October 24, 2002.1 The required certificate was not attached to the complaint by amendment until January 3, 2003, which was 71 days after the statute of limitation had expired.
On January 10, 2003, the Department moved to dismiss the Backenstos’ complaint because they failed to 1 exercise due diligence in the service of the Risk Management Division of the Department of Administrative Services, 2 timely mail a copy of the complaint to the attorney general, and 3 attach the required certificate of mailing to the attorney general in their original complaint. On January 30, 2003, the trial court denied the motion to dismiss, finding that 1 the Backenstos exercised the greatest possible diligence in serving the complaint and that 2 their amended complaint related back to the date of their original complaint to satisfy the certificate requirement of OCGA § 50-21-35.
